
Glass 

Book 



4 




Seal of Magna Charta. 



FREE GOVERNMENT 



ra 



ENGLAND AND AMERICA 



CONTAINING 



THE GREAT CHARTER, 

THE PETITION OF RIGHT, 

THE BILL OF RIGHTS, 

THE FEDERAL CONSTITUTION. 

S. M. JOHNSON. 



<# 



NEW YORK: 
Carleton^ Publisher •, 413 Broadway, 

MD CCC LXIV. 






Entered according to Act of Congress, in the year 1864, by 

GEORGE W. CARLETOI, 

In the Clerk's OflB.ce of the District Court of the United States for the Southern District 

of New York. 



It is said never to be diplomatic, seldom courteous or civil, and 
not always safe, to call things by their right names. If an excep- 
tion is anywhere to be found to this suggestion of policy, it should 
surely exempt the discussion of the wide-spread and destructive 
opinions which seem now to govern the American people. 

The spectacle of an admirable system of laws shamelessly over- 
ridden, or wantonly administered, is surely an occasion for plain 
speech. 

This work is submitted in the hope that an examination of its 
contents may lead to a better understanding of the principles and 
structure of the States and the Union, and to a higher appreciation 
of the duties and obligations of the people in the maintenance of a 
free system of laws. 

I have discussed at some length the leading doctrines of Free 
Government as they have been developed by the Anglo-American 
race, and have given a sketch of their progress through the strug- 
gles of the G-reat Charter, the Petition of Right, the Bill of Rights, 
up to the adoption of the Federal Constitution. 

These great events teach us the important lesson that Experience 
is the only safe guide in the creation and maintenance of free insti- 
tutions. These institutions embrace not alone the mere theory of 
Free Government, but the practical enforcement of its principles 
in all the affairs of life. Accuracy and completeness of form, in 
other words, are valueless without perfect fidelity to the law on the 
part of the people and the public administration. All this is exhibited 
by our English ancestors in a light so clear as to sink opposing 
theories to the level of fiction. In the struggle of 1628, no man 
did more to build up the free system of English laws than that 
great and honest statesman, Sir Edward Coke. He is found, 
nevertheless, to admit the right of royal dispensation — the right 



O PREFACE. 

of the king to dispense, in certain cases, with the laws of the state. 
That was the light in which a great majority of the people, at the 
time, viewed their own and the legitimate authority of the crown. 
Subsequent experience and observation disclosed the necessity of 
making the law supreme, in all cases. 

This principle of political progress is just as applicable to us as 
it was to our progenitors. It is illustrated with peculiar force in 
the history of the American States which, with rare exceptions, 
have ever maintained a free system of laws. Descending from this 
platform of freedom to the practical life of the Union — to the ex- 
ercise of power more remote from its source — we find even the 
ancient prerogative of roj r al dispensation not only revived, but so 
extended as to set aside both the laws and the Federal Constitution. 

I have sought to present a clear view of the great Experiments 
in Free Government, of England and America. The various sub- 
jects discussed have, to some extent, a separate interest, but their 
general connection is obvious. It is apparent, in going over so 
much ground, that many of the lights and shadows of political his- 
tory and many subjects of the greatest practical importance, at the 
present day, must be passed over without that minute pencilling 
and investigation which their merits claim. History and biography 
are so closely united, that he who undertakes to separate them, 
runs some risk of making his work lifeless and practically value- 
less. This is especially the case in reviewing the great subject of 
Free Government, which necessarily embraces the biography of 
many of the highest and noblest men of history, as it too often in- 
volves the sacrifice of their lives and estates. I have not altogether 
neglected the narration of such personal incidents ; though, I con- 
fess, I have not dealt as largely in them as I could have wished. 

In that portion of the work devoted to English and American 
political history, I have drawn freely upon cotemporaneous writers, 
and have used their reflections, with some necessary modifications of 
the text, with and without special credit, as would best carry out 
my design. 

New Toek, October, 1864. 



CONTENTS 



PAET I 



CHAPTER I. 

FREE GOVERNMENT — ITS CHARACTER AND OFFICE. 

PAGB 

It is a State of Laws — The British System — Its Rigid Enforcement — The 
Union an Elective System — Its Elective Preservation — Its Popular 
Failure — Organic Laws — Their Office — Certain Rights of Persons 
never Enter into Government — Too much Power a Source of 
Weakness, . . . . . . 17 

Notes, ........ 33 

CHAPTER II. 

THE STATE AND FEDERAL GOVERNMENTS. 

Their Unity — The State Exclusive Judge of Prohibited Powers — The Union 
not a Civil Polity — Not a Democracy — Persons and Majorities — How 
Regarded — The Slavery Question — Its Alleged Incompatibility with 
Free Institutions — The Law of its Existence and Extirpation, . 36 

Note, ........ 49 

CHAPTER III. 

THE JUDICIARY. 

Its Office in a Government of Laws — Its High Trusts and Duties — Suspected 
and Convicted Persons — How Regarded — Habeas Corpus — Extra-Con- 
stitutional Measures — Device for Violating Laws — Bold Usurpations — 
The Union a Brotherhood — Accountability of Federal Officials to the 
Judiciary — The Equilibrium of the System, . . . .51 

Notes, . . ... . . . . 69 

CHAPTER IV. 

THE habeas corpus act. 

Its Legal Office — Necessary to Free Government — How Suspended — The 
Right of the President and Congress Denied — Originated with Us — 
Subordination of the Military Power — Constitution Suspended by 
Overthrow of Judiciary — Military Government a Usurpation — Habits 



8 CONTENTS. 

PAGE 

and Traditions a Part of our System — Demoralizing Effects of Military 
Kule upon the Civil Power, . . . . . .19 

Notes, ........ 96 

CHAPTER V. 

MARTIAL LAW. 

The Guardians of Civil Liberty should understand what is Martial Law — 
Its Origin and Original Powers in England — The Extension of the 
Civil Establishment — Martial Law confined after the Great Charter 
exclusively to the Military Service — Its Complete Subordination to the 
Civil Power by the Petition of Right — The English System Ours — Mar- 
tial Law in the United States — Revolutions — Cromwell — His Military 
Government through Twelve Major-Generals — Where Laws Fail it is a 
Despotism — Exposition of Martial Law by the Supreme Court of the 
United States — Its Exposition in England by Lord Loughborough, 99 



PART II. 

CHAPTER I. 

THE ANGLO-SAXON SYSTEM OP LOCAL SOVEREIGNTIES. 

Object of the Present "Work — Freedom Among the Anglo-Saxons — Eorls 
and Ceorls — Origin of the Distinction — Local Character of the Saxon 
System— The Tything and Frank-Pledge— The Hundred— The Burgh— 
The Shire — Illustration of County Court Proceedings — Origin of Legal 
Customs in the Folk-Courts — Constitution and Powers of the Wittena- 
gemote — Constitution of the Saxon Empire — Decadence of the Saxon 
System, . . ... . . . . 12*7 

Notes, ......... 138 

CHAPTER II. 

THE FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

Origin of the Feudal System — Nature of the Feudal Tenure of Land in 
Consideration of Military Service — Socage — Homage — Allegiance — 
Amount of Service — Scutage — Reliefs — Heriots — Fines on Alienation 
— Escheats — Aids — Wardship — Marriage— Conversion of Allodial 
Lands into Feudal Tenures — Serfdom — Establishment of Feudalism in 
England, . . . . . . . 142 

Notes, ......... 156 

CHAPTER III. 

ENGLAND UNDER THE YOKE. 

Necessities of Despotism — Suppression of the ADglo-Saxon System and 
Language — Confiscation — The New Forest and Forest Laws — Tyranny 



CONTENTS. 9 

PAGB 

of the King over the Nobles — Exact Definition of Conquest — Rem- 
nants and Traditions of the Saxon System — Charters — Rufus — Henry 
I. — Stephen — Matilda — Henry II. — Richard II. — First Impeachment 
by Parliament, . . . . . . .161 

Notes, ........ 168 

CHAPTER IV. 

THE GIVING OF MAGNA CHARTA. 

State of the Kingdom at the Accession of John — Early Acts of his Reign — 
Murder of Prince Arthur — Refusal of the Barons to follow John into 
France — His Seizure of the Temporalities of Canterbury — Appoint- 
ment of Langton to the Archbishopric — England under Interdict — 
The Kingdom given by the Pope to Philip of France — The Interdict 
Removed — John's Oath before receiving Absolution — Discovery of the 
Charter of Henry I. by Langton — The Barons Swear to Maintain it, and 
Demand that John shall Ratify it. — They Raise an Army — London De- 
clares for the Barons — The Meeting at Runnymede — The Charter 
Granted — Its Character and Provisions — Recognition of the Right of 
Rebellion — Hume and Hallam on the Charter, . . . 1*76 

Notes, ........ 185 

Magna Charta, ........ 191 

Covenant op Security, ...... 204 

Notes on the Great Charter, ...... 209 

CHAPTER V. 

THE RISE OF PARLIAMENTARY REPRESENTATION. 

Sufficiency of Magna Charta — Necessity of Further Guarantees — Power of 
Parliament in the Reign of John — Absence of the Representative Prin- 
ciple — Henry's Ratification of the Charter of King John — Blending of 
the Norman and Saxon Races — Henry's Mortgage of the Kingdom to 
the Pope — The Government Intrusted to Twenty-Four Barons — The 
Civil War — De Montfort's Parliament — Overthrow of De Montfort — 
First Constitutional House of Commons — Accession of Edward I. — His 
Confirmation of the Charter — Statute de Tallagio non Concedendo — 
Final Settlement of Parliamentary Representation, . . 229 

Notes, ........ 238 

CHAPTER VI. 

TRIAL BY JURY. — THE HIGH COURT OF STAR-CHAMBER. SLAVERY IN ENGLAND. 

Observations on the Period from Edward I. to the Stuarts — Essential Fea- 
ture of the Jury Trial — The Roman Jury Trial — Peculiarity of the 
English Jury Trial — Its Origin in the Saxon Courts — Compurgators — 
Recognitors — Trial by Peers in Magna Charta — Witnesses Called in 
Aid of Jurors under Edward III. — Modern Constitution of the Jury 
Settled under Henry IV. — Subsequent Changes — Blackstone on the 
Jury Trial — Court of Star-Chamber — Its Origin — How Settled under 
Henry VII. — Its Jurisdiction under Henry VIII. — Historical Discus- 
sion — Mode of Procedure — Its Abuses and Effects — Civil Jurisdiction 
of the Star-Chamber — Its Enormities Described by Clarendon — Obser- 
1* 



10 CONTENTS. 

PAGE 

vations — Saxon Slavery in England— general Remarks on Slavery — 
Account from Hallam of its Gradual Disappearance in England — Con- 
clusion, ........ 246 

Notes, ........ 274 

CHAPTER VII. 

THE STUARTS. JAMES I. 

Character of the Stuart Period — Accession of James — His Speech on Open- 
ing his Parliament — Definition of Tyranny — The Doctrine of Divine 
Right — Severities against Roman Catholics — Parliament in 1609 — 
Act for Compelling Oaths of Allegiance — The Commons Maintain 
their Right to Decide Election Returns — Parliamentary Privilege — 
Their " Apology " to the King — They Expel a Member at his Dicta- 
tion — High Prerogative Speech of James to the Parliament in 1610 — 
Illegal Exaction of Tonnage and Poundage — Remonstrance of the Com- 
mons — Case of Dr. Cowell — Consideration of Grievances — Attempt at 
Union between England and Scotland, and at the Abolition of Feudal 
Tenures — Expedients of James for Raising Money— -The Undertaker's 
Parliament — Parliament of 1620-21 — James's Speech — Dispute of the 
Commons with the King on Adjournment — Parliament Reassembled — 
The Proposed Spanish Match — Petition of the Commons — Angry Let- 
ter of James to the Speaker — Second Petition and Remonstrance of 
the Commons — James's Answer — Protestation of the Commons — It is 
Torn out from the Record by the King — Punishment of Members — 
Parliament of 1623 — Monopolies, together with the Suspending and 
Dispensing Powers of the King, Abolished— Concluding Observations, 280 

CHAPTER VHI. 

THE STUARTS, CONTINUED. — 'CHARLES I. FIRST THREE PARLIAMENTS TO THE 

PETITION OP RIGHT. 

Introductory Observations — First Parliament — Charles's Speech — Tonnage 
and Poundage Granted for One Year by the Commons — Illegal Collec- 
tions of them by Charles — Hatred against Buckingham — Dissolution 
of Parliament— Exactions and Forced Loans — Second Parliament — 
Haughtiness of Charles — Preparation of the Commons to Impeach 
Buckingham — Commons Pass Supply Bills to be Granted when 
Grievances have been Heard — Unconditional Supply Demanded— 
Commons' Remonstrances — Impeachment of Buckingham — Imprison- 
ment of Diggs and Elliot — Abrupt Dissolution of Parliament — Re- 
newed Exactions and Imprisonments — Expedition to Rochelle — Third 
Parliament — Unconciliatory Speech of Charles — Complaint of Griev- 
ances — Sir Peter Hayman — Resolutions of the Commons — Address to 
the King — The Petition of Right First Agitated — Charles Endeavors 
to Prevent Discussion, offering His Royal Promise to Maintain the 
Charters — Permission for a Bill Given — Speeches of Elliot and Coke 
— Conference with the Lords — Their Proposition — Outline of the Pe- 
tition — Charles's Ambiguous Assent — Clerical Politics — Dr. Mainwar- 
ing — Charles Forbids Censure of Ministers — Excitement in the House 
Explanatory Message from the King — Regular and Final Passage of 
the Petition of Right— Joy of the People, . . .302 

Petition op Right, ...... 325 



CONTENTS. 11 

CHAPTER IX. 

CHARLES I. FROM THE PETITION OP RIGHT TO THE GRAND REMONSTRANCE. 

PAOB 

Five Subsidies Granted to the King — Punishment of Dr. Main waring — Ille- 
gal Commission of Excise Cancelled — Remonstrance of the Commons 
Concerning Tonnage and Poundage — Parliament Prorogued — Charles's 
Speech — Reassembling of Parliament — Consideration of Grievances 
and Outrages — The King Consents to Tonnage and Poundage as a 
Parliamentary Grant — Further Irritations by the Star Chamber — 
Charles Commands an Adjournment — Resistance of the Commons — 
Their Protestation — Charles's Proclamation — Imprisonments — Disso- 
lution — Remarks of Clarendon — Daring Proclamation by the King — 
Prosecutions of the Imprisoned Members — Disregard of Habeas Corpus 
by the Judges — Royal Exactions from the People — Feudal Oppres- 
sions and Forest Laws Restored — Ship Money — John Hampden — 
Charles's Doctrine of Military Necessity Sustained by the Judges in 
an " Extra-Judicial Opinion " — The Short Parliament — Grievances 
Considered — Supplies Demanded by the King — Answer of the Com- 
mons — Dissolution — The Long Parliament — Its Temper from the First 
— Unanimity of Lords and Commons — Late Proceedings of the King, 
and the Extra-Judicial Opinion of the Judges in Regard to Ship Money 
Declared Illegal — Monopolists and Patentees Excluded from Parlia- 
ment — Humiliation of the King — Tenure of Judges' Appointments to 
be henceforth for Life Act for Triennial Parliaments — Act to Pre- 
vent Sudden Adjournments and Dissolutions — Charles Gives up his 
Claim to Tonnage and Poundage — Abolition of the Court of Star Cham- 
ber and High Commission Court — Ship Money, Forest Claims, and 
Feudal Exactions Abandoned — Observations — Satisfaction of Reason- 
able Men Among the Commons — Welcome of the King in London on 
his Return from Scotland — Puritanism, . . . ■ - . 329 



CHAPTER X. 

CHARLES Is THE REIGN OF PURITANISM FROM THE GRAND REMONSTRANCE TO 

THE END OF CONSTITUTIONAL LEGISLATION UNDER CHARLES. 

The Grand Remonstrance Carried by a Puritan Majority of Eleven — Saying 
of Cromwell — Different Opinions Concerning the Remonstrance — Its 
Futility — Sketch of its Contents — Object and Determination of the 
Puritans — Their Exasperation of the King — Royal Impeachment and 
Imprisonment of Lord Kimbotton and the Five Members — Declaration 
of the Commons — Return of the Five Members — Separation of King 
and Parliament — His Eiforts at a Reconciliation — Implacability of the 
Puritans — Bishops Removed from Parliament — The " Root and Branch 
Bill" — Abolition— Militia Bill— The King Refuses His Assent — Mes- 
sage to the King from Parliament — His Answer — General Review — 
Puritan Despotism — Cromwell, . . . . .351 

CHAPTER XI, 

CHARLES Hi THE RESTORATION. — ABOLITION OF THE FEUDAL TENURES. HABEAS 

CORPUS ACT. 

England Under Cromwell — Reaction from Puritanism at the Restoration — 
Tendency to Restore Absolutism — Moderation of the Royalists — the 



12 CONTENTS. 

PAGE 

Feudal Tenures — Former Efforts to Abolish Them — TJbeir Final Aboli- 
tion in this Reign — Habeas Corpus — Origin of the Name — Provision of 
Magna Cbarta — Historical Sketch — Author of the Bill — Its Reproduc- 
tion in the United States — Its Twelve Provisions — Its Importance — 
Illustration from the Parallel History of France and England — Con- 
clusion, ........ 367 

CHAPTER XII. 

JAMES II. THE REVOLUTION. BILL OF RIGHTS. ACT OP SETTLEMENT. 

Preliminary Observations — The Exclusion Bill — Whig and Tory — Laws 
against Romanists — James, at his Accession, Acknowledges their 
Obligation — Supplies Granted by Parliament for the Term of the 
King's Life — James Insists on Supplies for a Standing Army, but De- 
clares that he has Broken and will Break the Test Laws — Answer of 
the Commons — Illegal Revival of the High Commission Court — Daring 
Declaration of Indulgence Published by the King — Execution of it — 
Trial of the Seven Bishops — Prince of Orange Lands — Flight of James 
— Meeting of Lords and Commons and the Common Council of Lon- 
don — Convention at Westminster — Joint Resolution of Lords and 
Commons — Settlement of the Crown on William and Mary — Substance 
of the Bill of Rights — Act of Settlement — Its Necessity — Substance of 
it — Conclusion, ....... 378 

Bill of Rights, ....... 391 

Act of Settlement, ....... 400 

CHAPTER XIII. 

COLONIAL CONSTITUTIONS. 

Introductory Observations — Constitutional Position of the Colonists — Law Of 
Nations on the Subject of Colonial Settlements : in Countries having 
Laws and Constitutions : in Countries not having Laws and Constitu- 
tions — Application of it to the Colonies — Their Interior Politics — 
Provincial Establishments — Proprietary Governments — Charter Gov- 
ernments — Mixed Government — Constitutions of the Colonies — Vir- 
ginia — Plymouth Colonies — Massachusetts — New Hampshire — Maine — 
Connecticut — Rhode Island — Maryland — New York — New Jersey — 
Pennsylvania — Delaware — North and South Carolina — Georgia, . 403 

CHAPTER XIV. 

THE ANGLO-SAXON SYSTEM IN NORTH AMERICA DISPUTE WITH ENGLAND — RIGHT 

OF REVOLUTION. 

Comparison of the Colonial with the Anglo-Saxon Settlements — Distinctness 
of the Colonies and its Causes — Different Times of Settlement — Dis- 
tance—Navigation Laws — Religious Animosities — Political Antipathies 
— Necessity of the Revolutionary War — The New England Confederacy 
— Nature of the Controversy of the Colonies with England — Claims of 
the English Parliament — Opposite View of the Colonies — How Vindi- 
cated by the Present Colonial System of England — Observations — 
' Force of Circumstances in Compelling the Adoption of the Anglo- 
Saxon System in America — The Right of Revolution — Founded in Na- 
ture — Object of Governments — The Doctrine of Consent — Revolution 



CONTENTS. 13 

PAGH 

only Justifiable in Case of Tyranny or Usurpation— Objection to the 
Right of Revolution on Scriptural Grounds — How Answered — Case of 
Hezekiah — Revolution is Justifiable Politically only by Success — Pru- 
dentially by an Improved Government — The American Revolution 
Justified Religiously, Politically, Prudentially — A Question, . 433 

Note, ........ 444 

CHAPTER XV. 

INDEPENDENCE. 

First Congress of Colonial Delegates — Assertion of Rights — Non-Inter- 
course — Petition to the King — Advice to Massachusetts — Lord North's 
Motion Rejected — Adjournment of Congress — Its Proceedings after 
Reassembling — Debate on the Proposition to Declare the Indepen- 
dence of the Colonies — Committee Appointed to Draft a Form of Con- 
federation — Further Steps towards the Adoption of the Declaration — 
Its Final Signature by the Members of Convention — Matter of the De- 
claration — Whence Derived — Its Legal and Constitutional Effect — Its 
True Grandeur, ....... 448 

The Unanimous Declaration of the Thirteen United States of 

America, ........ 461 

CHAPTER XYI. 

confederation. 

Committee on Confederation Appointed before the Declaration was Adopted 
— Its Report — Debate on the Plan of Confederation — Proportion of Tax- 
ation — Remarks of Mr. Chase — John Adams — Mr. Harrison — Mr. Payne 
— Dr. Witherspoon — Debate on State Yotes in Congress — Remarks of 
Mr. Chase — Dr. Franklin — Dr. Witherspoon — John Adams — Mr. 
Hopkins — Mr. Wilson — Adoption of the Confederation — Its Yalue, 467 

Articles of Confederation, .... . 4*78 

CHAPTER XVII. 

adoption of the constitution. 

Circumstances under which it was Adopted — Constitutional Position of the 
Colonies after the Declaration — That of Limited or Constitutional Gov- 
ernments — Independent of each other — Yet United — Distinction Be- 
tween a Consolidated and a Federative Union — Weakness of the Con- 
federation — Financial Difficulties — Difficulty in Making Treaties of 
Foreign Alliance — Proposition in Congress — Call of Virginia — Conven- 
tion at Annapolis — Its Report to the Legislatures — Congress calls upon 
the States to Send Delegates to a Convention — Importance of the 
Phraseology of the Call — Assembling of the Convention at Philadel- 
phia — Parties in the Convention— The Monarchical Party — The Large 
State Party — The State Rights Party — Propositions of Mr. Randolph — 
of Mr. Charles Pinckney — of Mr. Patterson — Of Colonel Hamilton — 
Twenty-Three Resolutions of Convention with Dates of their Adoption 
— Debates on the Third and Fourth Resolutions from Luther Martin — 
Equal Division of the Convention on the Subject of Representation in 
Congress — Conference — Compromise — Draft of Constitution Reported 
— Omission of the Word National — The Reason — the Revised Draft — 
Omission of the Names of States in the Preamble — The Reason — Seces- 



14 CONTENTS. 

PAGB 

sion of States from the Confederatioa — Unanimous Adoption of the 
Constitution in Convention — Its Reception by Congress — Ratifications 
by the States — Act for Putting it in Operation — Washington Elected 
President — Imperfection of the Constitution as Adopted — Declarations 
Made and Amendments Offered by the States — Massachusetts — New 
Hampshire — South Carolina — Virginia — New York — Rhode Island — 
Twelve Amendments Proposed by Congress — Ten of them Accepted 
by the States — Value of the Amendments — The Eleventh Amendment 
— The Twelfth — Concluding Observations, . . . . 489 

Constitution of the United States of America, . . . 527 

Articles in Addition to, and Amendment of, the Constitution of the 

United States of America, . . . . . . 540 

ADDENDA TO PART SECOND. 

LOCKE ON GOVERNMENT. 

Objects of Government — Arbitrary Power Compared with a Government of 
Laws — Consent and Force — Conquest — Right of the Conquered — Limits 
of the Right which can be Obtained by a Rightful Conqueror — Over 
His Own People — Over the Vanquished — The Latter Despotical — But 
not Universal in its Extent — Not Including the Property of the Van- 
quished, which is his Children's — But only the Lives of those Actually 
Engaged in War — These Propositions Logically Discussed — Right of 
Rebellion Reserved to the Conquered even after Forced Consent to the 
Victor's Authority — This Right an Indefeasible Inheritance of their 
Posterity — Case of the Greek Christians — Summary — Case of Hezekiah 
— Arbitrary Rulers put themselves into a State of War with the People 
— Thereby Absolving them from Allegiance — The People not Dis- 
posed to Revolution — The Right of Revolution and Rebellion— When 
it Exists — Objections Answered, . . . . . 546 

BURKE ON THE AMERICAN WAR. 

Exordium — Occasion of the Speech — Magnitude of the Task of Restoring 
Order in America — Burke's Proposition is " Peace not Through the 
Medium of War " — " It is Simply Peace " — With the View of Restor- 
ing Confidence and Procuring Reconciliation — The Questions at Issue — 
Ought Concessions to be Made? — If so, What Concessions? — Position 
of the War Party — Objections — Advantage Gained by Force Tem- 
porary — America must be Destroyed in Preserving it to England — 
Experience against the Use of Force — American Temper and Char- 
acter — The Spirit of Liberty — Working of Colonial Government- 
Conduct of the Government towards America — Means of Reconcilia- 
tion — the Causes of Discontent must be Removed — Impossibility of 
Subjugation — Infamy of the Attempt — Unfitness of England for the 
Task — The American Character Fixed and Unalterable — Spirit of the 
Southern Colonies — Slaves — Proposition of Criminal Prosecutions 
against Rebels — "Too Big a Thing " — Definition of an Empire — In- 
ference — Judicial Position of England — Her Consequent Duty of Jus- . 
tice — What had been Gained by the Measures of the Government ? 
What Concessions ought to be Made — Complaint of the Colonies — 
Taxation without Representation— Duty of Government — Necessity of 
a Unity of Spirit — The Colonies must be Protected by the Constitution 
— Example of Spain — Precedent of Ireland — Wales — Chester — Dur- 
ham — Excitement of the* American Mind to be Considered and Al- 
lowed for — Effect of Reconciliation, . . . . .558 



PART FIRST 



CHAPTEE I. 

FREE GOVERNMENT— ITS CHARACTER AND OFFICE. 

IT IS A STATE OF LAWS — THE BRITISH SYSTEM ITS RIGID ENFORCEMENT THE 

UNION AN ELECTIVE SYSTEM — ITS ELECTIVE PRESERVATION ITS POPULAR 

FAILURE — ORGANIC LAWS — THEIR OFFICE — CERTAIN RIGHTS OF PERSON NEVER 
ENTER INTO GOVERNMENT TOO MUCH POWER A SOURCE OF WEAKNESS. 

It would seem to be an easy task to arrange a just system of 
relations between government and people ; certainly so on the 
basis that the former is an agency created by and for the sole ben- 
efit, advantage, and protection of the latter. In theory, this is the 
purpose and end of every description of polity, the public good being 
the grand objective point to be reached. 

The application of this principle, in the creation and mainten- 
ance of government, in different countries, has produced widely 
different forms of administration. This is neither paradoxical nor 
illogical, any more than it is illogical in the physician who varies 
his remedies to suit the constitution and overcome the peculiar 
malady of his patient. Precisely so it is in the institution of gov- 
ernment. What is suited to one people, is evidently unsuited to 
another. 

In discussing the principles of free government, it would be un- 
fair to test their practical benefits, by reference to the history of 
those nations where free speech and a free press have been the 
mere dreams of enthusiasts. With rare exceptions, the laws of 
any named people will be found to express just what is best adapted 
to their necessities, and indicate the true state of popular intelli- 
gence of the country ; — in other words, what may be the very best 
government for one nation, may be the worst for another. This is 
simply the adaptation of means to ends. 



18 FREE GOYEKNUENT. 

It has been very much the habit of public writers, on both 
sides of the water, to draw conclusions concerning matters of gov- 
ernment, from the operation of certain systems of administration, 
which have been found to work admirably in specified countries, 
without taking any account of the peculiar political habits of the 
people, their intelligence, or the character of their religious opin- 
ions. Hence it is that the French, always the most prosperous and 
successful under absolute government, are convinced that imperial- 
ism is better than republicanism— that the will of one man is better 
than the laws of many. 

The English, on the other side, are equally certain that their 
free system of laws is the perfection of wisdom. 

They are, in our judgment, both in the right. 

The British government expresses a far higher intelligence on 
the part of the people, more complete and defined notions of per- 
sonal rights and liberty, more dignity and nationality, than that 
of the French. It has elicited, in its establishment, more mind, 
and involved vastly heavier personal sacrifices. It is a state of laws 
— a state in which individualism no longer exists as a governing 
power — in which the law is supreme. 

If we take any account of the ambitions of men, we must admit 
that the creation of such a system is a most wonderful achievement. 
It may be doubted, indeed, if any other people have encountered 
so many difficulties in the creation of government as the English. 
We know of no other where classes are so distinctly marked— the 
high, the middling, and the low ; as there is no other, where, under 
the laws, classes are so absolutely obliterated, where laws, not in- 
dividuals, have such supreme control. 

It will be admitted that a state of laws, so established as to se- 
cure public tranquillity, and maintain the rights of person, against 
the encroachments of influence and individual power> and of the 
state itself, is the best civil polity. This is precisely what we under- 
stand to be the British government. It has had a slow, but sure 
and healthy growth. Unlike the government of the Union, which 
consists of a simple compact of independent States, covering a few 
specified interests, created, as it were, by a body of representatives, 
commenced and ended in a day, that of England has been the pa- 



ITS CHARACTER AND OFFICE. 19 

tient work of many centuries, its progress evolving principles of 
freedom, which had to be won by battle and by argument. It is a 
singular feature of British history, that the people have never taken 
a step backwards. Often checked in their onward course, slow to 
secure obvious rights of person and property, obstructed or crippled 
by the hand of power and ambition, they have, through every trial, 
vindicated their grand purpose to establish a free system of laws, and 
make them supreme, at all times and in every exigency, over individ- 
uals. This is the distinguishing feature of all free government. 

It is common to maintain that this species of polity, being in its 
nature more stately and inflexible than absolute government, is ill 
adapted to meet and overcome great trials and difficulties. It is 
urged that while it is admirable in peace, economical in adminis- 
tration, and effective in rule, in the ordinary affairs of life, it is 
cumbrous, heavy, slow, and expensive, in periods of peril or civil 
commotion. This argument goes to the main question — to the very 
power of any people to maintain free government on any terms; 
for a state is clearly worthless, and something worse, if it has not 
the capacity, energy, and patriotism necessary to sustain its own 
life in hours of peril. If what is called a government of laws, is 
incapable of doing this, without invoking the discretionary powers 
of individuals — without, in other words, substituting the will of the 
latter for the inflexible rule of the former, it follows that it is a 
radical and mischievous error. 

It is far better, under every description of government, to rely 
upon the enforcement of laws, than to trust the wisdom of persons, 
however honest, in times of civil commotion. It is hardly possible, 
at such periods, to find individuals to rule, who do not enter upon 
their work as partisans ; and it is more than has been found safe, 
in this country, to trust this class of persons in time of peace, much 
less should they be trusted with administrative discretion, in war. 

Those who maintain the necessity of this rule under any cir- 
cumstances, are no friends of constitutional government. It is a 
sort of appeal from free institutions to absolutism — from the gov- 
ernment of the many to that of the few ; a resolution to abandon 
the organism of the state in favor of a few persons in authority. 

It is no answer to this statement to say, that individual govern- 



20 EREE GOVERNMENT. 

ment proposes to lay aside only a limited portion of the written 
law. It is not the extent of the change, but its character, its na- 
ture, to which we object. The authority to alter constitutional 
covenants is lodged in the States, which must act in strict obedi- 
ence to the organic law. Statute laws, State and federal, come 
within the legislative authority. It is now proposed to ordain a 
third estate, giving or conceding power to persons in charge of 
affairs, under the constitutions and laws, to alter, modify, or annul 
the one for the time being, and disregard the other. This, we 
take it, is authority, in point of fact, to ordain a new government. 

It will not be maintained that we have adhered, in strict fidel- 
ity, even in the ordinary administration of the Government, to the 
Federal Constitution. In more than one instance, we have, as a 
people, sanctioned the complete surrender of fundamental rules, 
and given the full force of law and the indorsement of majorities 
to measures which were utterly incompatible with the peaceful 
maintenance of the National Government. 

The Missouri Compromise is one of these — a law which ordained 
and established disunion — which distinctly recognized the separate 
existence of a political North and a political South ; a law which 
created, as far as it could do so, two governments, permitting 
certain things to be done in one, which it prohibited in the other, 
thus ordaining positive inequality between citizens of the same 
common country. We allude to this matter, not to discuss it, but 
to show the tendency of our people, in time of peace, to disregard 
or overlook the Constitution of the United States as the supreme 
]aw of the States over the interests delegated to the Union. 
Whether that compact was absolutely perfect or not, it is certain 
that the least departure from its provisions was not only unjustifi- 
able, but fatal to the whole scheme of government, of which it was 
the only law. If, in other words, it was not supreme to the extent 
of preventing even compromises, by any other than State action, 
which violated its covenants, it was no law at all. If it had no power 
to vindicate itself against the action of majorities or even absolute 
unanimity, on the part of the people, except in its own prescribed 
way, then it follows, that, instead of a constitutional government, 
we had a purely democratic majority government. The real law 



ITS CHARACTER AND OFFICE. 21 

of the Union was not the Constitution, hut the will of greater 
over lesser numbers. The recognition of the right to give force 
to laws, made io contravention of the fundamental law of the 
Union, concedes at once the right of the people, without reference 
to the States, to alter, modify, or annul the latter, at pleasure. 
Of course, in such case, the government is a democracy, under which 
minorities have no rights, and majorities are supreme. 

Our career as a nation, though short, is full of evidence that 
however perfect may have been our theory of self-government, we 
have, after all. understood little of its practical philosophy. We 
have had a broad and a rich field ; but our husbandry has been 
sadly defective, our labor misapplied, and our productions meagre 
and unsatisfactory. 

Our failure, for such it is, may be accounted for, by a simple 
reference to one or two leading features of the national mind. 
Self-reliance is a great virtue when kept within reasonable bounds. 
It quickens invention, stimulates industry, widens the channels of 
enterprise, and gives energy and force to those who possess it. 
But like every other good quality it is liable to run into excess — to 
become swollen into such inordinate vanity as to reject the lessons 
of experience and all the counsels of history. It is folly to seek 
to conceal this turn of an excellent characteristic of the American 
people. The great evils of its existence and dominion, at the 
present moment, are too obvious, damaging, and pervading, to 
admit of either extenuation or justification. It is the dominion 
of self-conceit over wisdom and patriotism. 

It is no answer to point to the industrial successes of the people, 
during the period of what we call our national existence ; for these 
very triumphs of labor indicate far more the source of the evils 
referred to, than prove our capacity to maintain the government 
under which they were achieved. It is better at once to admit 
that we are indebted to exemption from trials — that our great 
success has resulted from the absence of political disturbances, 
rather than from ability, by strict adherence to fundamental prin- 
ciples of justice and freedom, to manage and control them, when 
they arise. Until recently we had been called upon only to over- 
come trifling disturbances. No great, disintegrating elements had 



22 FREE GOVERNMENT. 

before presented themselves. We had an elective system, em- 
bracing exclusive elective remedies. This was the corner stone 
and foundation of the political edifice. It embraced no other prin- 
ciple, touching the matter of its creation, existence, or mainten- 
ance. It was indestructible, too, so long as this principle should 
have sovereign control in its administration. The exclusion of 
the ballot, in the adjustment of differences, under such a system, 
was the abandonment of the Constitution — the practical abdication 
of government by the people, and the installation of another kind 
of government, by irresponsible men. 

In point of fact, we have signally failed, on the first great trial, 
to maintain free government. What is now of greatest interest, is 
to ascertain, if possible, the cause of this failure, which must be the 
source of our greatest weakness. 

A review of the past and present position of the States and 
Union, it seems to us, discloses this striking defect : 

Ignorance, on the part of the people, of the real office and what 
is necessary to maintain a free system of laws; or non-appreciation 
of the necessity, at all times y of maintaining the supremacy of the 
laws over individuals. 

It would be difficult to find testimony more complete, in sup- 
port of this suggestion, than that which the present National 
Administration has presented, within the short period of its rule. 
Starting with the open declaration that the public exigencies 
demanded the removal of all legal restraints, its measures, from 
that time to the present, have, in no material respect, been made 
to conform to the Federal Constitution. It is due to candor to say, 
however, that both Congress and the people have distinctly ap- 
proved, and, as far as their action could do so, justified, the annul- 
ment of the organic law and the substitution of the will of the chief 
magistrate, as the governing power of the country. In other words, 
if the President violated the Constitution and the rights of persons 
and property, his criminality is no greater than that of the people, 
who either indorsed, or gave a qualified assent to, all his acts of 
usurpation. The offence, in this way, was compound. There was 
no other process so sure to ruin the President, on the one hand, 
and the institutions of government, on the other. No man could 



ITS CHARACTEE AND OFFICE. 23 

withstand such temptations, and no system of laws such a terrible 
shock. 

We deem it unnecessary to point to the public records of the 
country, to show that we have not drawn our conclusions from an 
imaginary condition of public affairs. The announcement, by the 
President, of the imperial power of war, under his exclusive con- 
trol ; his suspension of the writ of habeas corpus; his abrogation 
of many provisions of the Constitution, trial by jury, free speech, 
the press ; his wilful confiscation of estates ; his new law of 
treason ; his emancipation ; his assumed jurisdiction over all the 
people, even to their expulsion from the country by military 
force, are surely enough to justify what we have said. 

Granting that the highest motives of patriotism governed him, 
it makes nothing in his favor, as a political trustee,, under defined 
powers ; for there was nothing but the Union to save, and there 
could be no legal agency employed in the work other than those 
ordained by the States. 

The States had ordained a limited, but perfect government of 
laws, to be maintained by them, within the sphere of its authority. 
It was fearfully menaced, not by mere casual disobedience, but by 
organic, internal convulsion. 

Its authority was openly set aside by large and influential 
States, four of which were original parties to the Union. Our duty 
was a plain one — to vindicate the laws within the scope of the au- 
thority of the Constitution, and by its appointed agencies. 

There could be no other vindication ; for the instant we trans- 
cended this limit, no matter with what motive, we became assail- 
ants, not defenders of the Union. If the latter provided one remedy 
for a certain political disease, and we failed to employ it, and sub- 
stituted another, it follows that we would not trust the law nor wait 
till we could modify it in obedience to prescribed forms. We pre- 
ferred to rely upon the discretionary power of public agents. 

This is a plain proposition. The Union, based entirely upon 
living governments, existing purely under written laws, was in- 
capable of admitting into it the least discretion, as it was impos- 
sible to maintain it on any other than an elective basis. Force was 
as foreign to its maintenance as to its ordination. It is believed 



24- EREE GOVERNMENT. 

by many, that it never could have been permanently ruptured with- 
out force, and by more, that it can never be restored with force. 
Force is personal discretion, the law of individuals, in direct antag- 
onism to the written law. The British Constitution, as it is called, 
though its powers and prohibitions are sufficiently defined by va- 
rious royal charters and parliamentary declarations, is what may be 
termed a system of political common law — a sort of prescriptive 
government — the result of a most protracted effort on the part of 
the people to secure their rights as freemen. There is no pretence 
of equality, as that word is now understood, in it. The people are 
not born equal, unless we mean that they have an equal right to 
breathe the air, to speak their sentiments, and enjoy the blessings 
of liberty. The foundations of the British Government were all 
laid in absolutism, from which has been raised its superstructure of 
laws. From one man it has grown up to be every freeman of the 
kingdom. From allegiance to that one man, it is now allegiance to 
laws. So it is in the United States. Yet the two systems widely 
differ in structure and administration. It took many centuries, in- 
volving vast sacrifices of persons and property, to achieve the pres- 
ent Constitution of England, while that of the United States was 
the work of a few days — the work of States, as free as the Empire 
of England. We have been parties to both systems. When we 
separated from our great ancestors, we dissolved all the political re- 
lations subsisting between us, but retained everything else. Their 
experience was ours. Their knowledge was ours. Their martyrs 
to liberty, all their lessons of adversity in struggling for a free sys- 
tem of laws, their hostility to military power, their language, their 
literature, their ancient love of freedom and independence, were 
ours. The States combined to effect their separation. When this 
was achieved they stood before the world as thirteen nationalities. 
They subsequently ordained the Union, not by sinking their na- 
tionalities, but by creating a government of States — a government 
of independent authority over individuals within the scope of 
the powers delegated to it by the States, but in nothing else. This 
is seen in the act of confederation, and in the fact that it is a govern- 
ment of States. It contains not one dynastic element, not one grant 
of discretionary authority to its representatives. This was the 



ITS CHAEACTER AND OFFICE. 25 

principle and the policy of its creation, for the obvious reason that 
its constituent parties maintained, respectively, perfect civil insti- 
tutions. The latter embrace quite all the concerns of life. The 
relations of husband and wife, parent and child, guardian and ward, 
the collection of debts, the settlement of estates of deceased persons, 
the tenures of real property, the punishment of crime, the mainten- 
ance of the poor, education, charitable institutions, the authoriza- 
tion of corporate bodies, local municipal police, and a hundred other 
matters of familiar life, come within the scope of the State govern- 
ments. 

It is illogical to claim that these living governments, which cre- 
ated the Union, which confer upon it all the machinery of adminis- 
tration and all means for its maintenance and support, are in any 
sense subject to the discretionary power of individuals. Such a 
conclusion might, possibly, be admissible under a concrete system, 
but it is clearly inadmissible under that of the Union. Its agents 
are all elected, directly or indirectly, by the people of the- States, in 
obedience to their respective laws. There is not one approach to 
it, except through the States. They make its president, its legisla- 
ture, and, indirectly, its judiciary. They give up their citizens to 
constitute its army and navy. Without them, it is nothing. It is the 
law, and the only law, of their being. They are its constituents, not 
as a people, but as so many independent nationalities. 

It requires but a moment's reflection to see that, under such a 
system, the laws must, at all times, be supreme over individuals. 
It is unquestionably better that it should be so in every govern- 
ment, but absolutely necessary under this, for the obvious reason, 
as we have stated, that the Union is the law of the States and not 
of the people. 

Exactly the opposite of this theory of the Union has been its 
administration during the last three years. Its law has been 
treated as a cumbrous, heavy weight, and its strict maintenance 
punished as treason to the Government. Patriotism has been made 
to consist in upholding the action of persons in direct opposition to 
it. Those who would show the least regard for its obligations and 
the greatest contempt for its solemn injunctions, have been most 
honored and trusted. 
2 



26 FREE G0YERNME1ST. 

We have passed through years of great political trial. The in- 
stitutions of the country have been put to a severe test indeed. It 
was not enough that we should meet and overcome the military 
force which assailed and sought to overthrow them. We had a 
character as a free people, as well as a government of laws, to up- 
hold. We could not sustain the latter and give up the former. 
Our enemies are those who violate our laws, who set aside the Con- 
stitution, no matter on what pretext. Our institutions were put 
upon trial. Their practical utility must undergo the terrible test 
of a widespread civil war. The question was, whether the laws 
should prevail over the illegal and treasonable action of individuals. 
We must determine not only who are the open, but also the concealed 
enemies of the Union. He is quite as much an enemy who tran- 
scends the authority of the Union, professing to sustain it, as the 
rebel who openly defies its authority. We have no right to make 
war for anything else than the enforcement of the laws, as we have 
no right to punish rebels for anything else than their violation. If 
we do not ourselves know what our institutions are, or, what 
amounts to the same thing, permit public agents to modify them at 
will, then it is clear that we cannot determine what is loyalty on 
the one hand or treason on the other. 

We are confident that our political bankruptcy is due, not to 
the defects of our institutions, but to the dominion of great popular 
errors, which have made it impossible, for the moment, to say. 
whether the Administration at Washington or Richmond have done 
us most harm. Pride, ambition, and ignorance have ever warred 
against free government. What we have said of these passions in 
England is quite applicable to us. The English people have re- 
peatedly done just what we are doing — and they have done again 
just what we shall yet do — they have vindicated the supremacy of 
their free system of laws over all personal discretion. 

In this view, our comprehensive and damaging mistakes and 
omissions, during the present war, may be charged to non-apprecia- 
tion of what was required of us rather than to defects of our sys- 
tem, or inability or indisposition to maintain it in all its legal force 
and integrity. 

Good practical government may unquestionably exist, embra- 



ITS CHARACTER AND OFFICE. 27 

cing freedom of speech and of the press and the largest measure of 
personal liberty, without a Constitution, Magna Oharta, Bill of 
Rights, or any such law as the Habeas Corpus Act. So it is possible 
to maintain order, for a limited time, without the aid of civil 
institutions of any kind. 

The general tendency of all self-governed communities is suf- 
ficient, under ordinary circumstances, to assure not only public 
tranquillity, but to enforce the rights of persons and property. 
Governments are ordained not alone to secure these ends, but so 
constructed as to be able to meet and overcome great trials and 
difficulties. To assure this, with greater certainty,, organic laws 
are enacted. These laws govern the corporate bod} r , just as 
statute laws govern the magistrate and the people. They are said 
to be supreme laws, not because they are irrepealable or indestructi- 
ble, but because they are supreme over all the agencies of govern- 
ment, whose powers they define, whose duties they enjoin, and whose 
jurisdiction they determine. They are supreme over the executive, 
the legislature, and the judiciary. They constitute an official chart 
which should be ever present in their deliberations and ever control 
their action. 

It is their office not only to direct what may be done, by the 
law-making, the executive, and judicial power, but, through the last- 
named department, declare what shall not be done — to command and 
to interdict action. 

In addition to these obvious intendments of the organic law, 
it is one of its chief offices, in a free government, to define what 
interests and things shall be exempt from the operations of the polity 
— what, in the language of the Federal Constitution, u shall bo 
reserved to the States respectively or to the people." 

For instance, free government, being ordained exclusively in 
the interest of the people and for their protection in person and 
property, can never rightfully gain jurisdiction over either, except 
for the punishment of crime. The sacrifice of either, on any other 
ground, is sufficient to show that its ends have been perverted, and 
that, instead of a government of laws, it is a system of robbery, 
arson, murder, and personal aggrandizement. 

Government is rightfully limited to the accomplishment of 



28 FREE GOVER^IENT. 

certain ends, all of which must accord with the public good and 
advantage. These are its only legitimate mission. It is certainly 
not necessary, in the maintenance of such a system, to take the 
property or interfere with the liberty of persons of the common- 
wealth. It is the right of every well-conducted citizen to say and 
publish what he wills, being always responsible to injured persons 
for the abuse of this right. He is never responsible to the Govern- 
ment, for any such abuse, because the policy of the state demands the 
utmost liberty of speech and the press. This is not only essential 
to the integrity of its administration, but it is that which has 
always been admitted to be the very soul of our institutions. 
These institutions signify general discussion, criticism, and con- 
demnation. They are the product of free inquiry and speech. To 
admit the right to suppress either, would be exactly equivalent to 
the suppression of the GJ-overnment. The silly pretence set up that 
it is necessary to keep them within reasonable bounds by political 
agents, is an impeachment of the laws for the protection of persons, 
because persons alone have a right to complain. The Government 
itself cannot be injured, except on the hypothesis that the agent 
for the time being is the state. 

But we go farther than all this. The right of free speech and 
a free press is absolute, with or without constitutional guarantees. 
It is exempt from the operation of the polity — leyond its jurisdiction. 
No people in ordaining civil institutions are authorized to trench 
upon this right. It is original and inalienable. The cause of 
good government, of morality, religion, and human progress, forbids 
that it shall ever, under any possible circumstances, be surrendered 
by the people. It is their birthright, their weapon of defence 
against aggression and wrong. Without it they are subjects, not 
freemen. They have no right to yield up this natural gift of a 
beneficent God, because it is inalienable, and for a better reason, 
because no people have a right to go from light into political 
darkness. 

The Federal Constitution, we repeat, was framed on this theory. 
It expressly declares that the powers not delegated to the Union 
are "reserved to the States respectively or to the people." The 
latter portion of this clause bears no other signification than the 



ITS CHARACTER AND OFFICE. 29 

reservation of certain rights, ordinarily embraced in political gov- 
ernments, " to the people." These include exemption from arrest, 
except for crime, to be determined by judicial authority ; all rights 
of property ; perfect religious freedom ; free speech and a free 
press. The States of the original confederation, "without a single 
exception, recognized these rights as beyond their legal jurisdiction. 
The safeguards thrown around them in the Amendments to the Con- 
stitution, evince alike distrust of Federal agents and a determina- 
tion to protect them. 

It will be found, we apprehend, under every description of pol- 
ity, that the recognition of this principle would not only impart sta- 
bility to the state, but be the source of its greatest social, industrial, 
and intellectual progress. 

It is said of the common law, that it is the perfection of reason. 
If so, it is because its authors have treated all subjects of investiga- 
tion in absolute freedom. In this spirit it is time to investigate not 
only what are the legitimate ends and mission of government, but 
what interests should be reserved from its operations. These reser- 
vations or limitations, we imagine, will be seen to be far more im- 
portant matters and more effective guarantees of stability, strength, 
and efficiency, than its positive grants. It is nothing more than the 
simple recognition of the well-established principle, that power is a 
source of weakness as well as strength. When unlimited, it is apt 
to degenerate into licentiousness, and thus make an enemy of one, 
on account of its moral failings, and of another, by reason of its 
illegal oppressions. It is seen, in practical life, which is the only 
test of usefulness, to be just as necessary to withhold as to confer 
authority upon government. We refer, of course, to a free system. 
Now, while the Federal Constitution is an open record, defining 
every power that may be exercised ; expressly reserving certain 
rights of person and property ; prescribing, in numerous cases, the 
mode of prosecution for offences, and measuring the extent of pun- 
ishment, as for treason ; declaring what magistrates and others shall 
do to gain jurisdiction of alleged offences, is it not true, from what- 
ever motive, that quite all these provisions of the law have been 
either disregarded or annulled, for the time being, by the Adminis- 
tration? Let us see : 



30 FREE GOVERNMENT. 

Trial by jury has been habitually denied. 

Persons have been arrested and imprisoned by military author- 
ity, in utter disregard of the Constitution. 

Private property has been taken for public use, by military 
orders. 

Freedom of speech and the press has been suppressed by like 
orders. 

Property has been confiscated by legislative and executive 
authority, in utter violation of the Constitution. 

Persons have been seized, tried by military commission, and 
transported beyond the jurisdiction of the States, by express order 
of the President. 

The privilege of the writ of habeas corpus has been suspended, 
in the loyal States, and all the machinery of martial law put in 
operation throughout the whole Union. 

The United States have been transformed by these measures into 
a purely military government, and the civil authority everywhere 
subjected to the arbitrary orders of the commander-in-chief of the 
army and navy and the militia, in actual service. 

This array of treason to the Union and to every principle of 
free government, embraces only the most prominent offences com- 
mitted against the constitutional authority of the United States by 
the people's representatives. They are. too, not only avowed and 
continued by the ministers, but were explicitly indorsed and justi- 
fied by the Republican National Convention at Baltimore. They 
stand, then, as their settled maxims of government. It is claimed 
that these proceedings have been instituted in aid of the Constitution. 
Lord Brougham, speaking of the proposed suspension of the Habeas 
Corpus Act, in 1817, says : 

" It is said by those who now call for the suspension of the Ha- 
beas Corpus Act, that in times of danger the Constitution requires 
support. I beg leave to protest against this doctrine. The Consti- 
tution of England is not made merely for fair weather, and if it 
cannot defy and outlive the storm, it is not worth preserving. If 
this measure is unfortunately passed, I hope never again to be com- 
pelled to listen to the pharisaical cant of how much happier and 
more free the subjects of this country are than the nations by whom 



ITS CHARACTER AND OFFICE. 31 

they are surrounded ; for what does the suspension of the Habeas 
Corpus Act prove, but that the Constitution of England is of no 
use, and the liberty of England of no value ? " 

We allude to this subject, not to discuss the character of the 
existing Administration, but to show how necessary it is that a 
free system of laws should be restricted in the exercise of powers, in 
order that it may command the confidence of the people, without 
which it cannot and ought not to be successful. This confidence is an 
outbirth of freedom, and a vital element of all social, political, and 
industrial progress. But it can never be attained, in this country 
or in England, except on condition of the entire protection of per- 
son and property. A failure to do this, from whatever cause, is a 
compound offence here ; an offence against the States, against the 
citizen, and against the legitimate government of the Constitution. 

It is due to candor to say, that the people of the United States, 
though sincerely attached to a free system of laws, entertain very 
questionable ideas, upon a single point, at least, in reference to what 
should constitute such a system. They admit the right to ordain a 
constitution, conferring unlimited authority upon the legislature to 
enact and enforce such laws as their constitution may permit or 
command. This we hold to be a radical and damaging error. 

There is no right, surely, in the people, in framing government, 
to do more than is absolutely necessary to be done, in order to put 
into operation a perfect system of laws. For instance, trial by 
jury, by its long and beneficent agency, has become an essential 
feature of free government — a sort of vested right, which persons 
charged with offence may invoke, and which there is no power in 
the state to withhold. Freedom of speech and the press, the rights 
of the habeas corpus, and the subordination of the military to the 
civil authority, and many other interests of the same nature, are 
necessary elements of thia species of government. They are rights 
which the citizen cannot be called upon to surrender, for the sim- 
ple reason, that jurisdiction by the state over them would add 
nothing to its strength or efficiency, but take much from both. 

Military authority, in the United States, is purely ministerial in 
its nature. It may enforce laws in certain cases, ordained by com- 
petent authority ; but it can never, under any circumstances, exer- 



32 FREE GOVEKfrTMEOT. 

cise legal jurisdiction over either persons or property, outside of the 
military service. There is no authority, in Congress or the Presi- 
dent, to confer such jurisdiction. The existence of war adds 
nothing to its legitimate powers in this respect. Whenever and 
wherever it has done so, it has committed a flagrant violation of the 
Constitution, and a more flagrant and damaging assault upon the 
character of the American people. 

We hold the latter to have been, in this way, its most serious 
and injurious offence. 

To the American people had been committed, more than any 
other, the great trust of maintaining a free system of laws. We 
had promised more and accomplished more in the short period of 
our national existence, than any other people. It was here that 
labor received its highest reward, that genius and invention 
achieved their greatest triumphs, that education was most widely 
disseminated ; and it was here that freedom, peace, and prosperity 
had made their cherished home. 

We had done more as a People than as a Government. 

It is thus seen that the domination of the military power is some- 
thing more than a mere political offence. Our estates are not all 
made up of civil institutions. When we gave up those institutions 
we surrendered the greatest name as a People, the highest dignity 
and the noblest mission ever organized by freemen. It was a sac- 
rifice so complete that, from being the first people in all the world, 
in character and works, we became the last in practical freedom 
.and political wisdom. This fall is due exclusively to the fact that 
we have tamely surrendered the dominion of laws to a wanton mil- 
itary rule. 

We had a mission to fulfil as well as a state to maintain. 
Separated from the great governments by an impassable barrier, 
which protected ,us through all the stages of our early career, we 
had grown to cejlossal proportions, with ample power to vindicate, 
by arms and by labor, the free system of laws which we had adop- 
ted for our government. We had advanced so far that our ex- 
ample became an eloquent and powerful assailant of absolutism 
everywhere, while it conveyed to every people unquestionable proof 
of the capacity of man for self-government. 



ITS CHARACTER AND OFFICE. 33 

Without a thought of active intervention with the local politics 
of others, we had declared, in the name of the people, that hostile 
European colonization on this continent would in no case be per- 
mitted. This was no more than a legitimate expression of our 
political system. There was nothing of menace or presumption in 
it. As a measure, it was timely and regular. Europe had com- 
bined at Vienna, to declare to the world that her people should in 
' no case recognize free institutions. England had joined in this 
decree of exclusion. If Europe could rightly interdict free gov- 
ernment on the other side of the water, we certainly could inter- 
dict absolutism on this. There was as much moral and les;al weight 
in our ideas as theirs. They addressed us, it is true, through their 
governments, while we addressed them as a people. We listened 
to them because we knew they had power to enforce their decree ; 
they listened to us because they knew we had power to enforce 
ours. 

So long as we remained true to the principle which gave us 
that power we were potential and unconquerable ; when we aban- 
doned that principle and practically adopted that which governed 
the Congress of Vienna, we became weak and contemptible. This 
abandonment stands to us as a subjugation by a foreign power. It 
is not armies alone, commanded by Frenchmen or Germans, which 
constitute foreign invasion. Whatever is not indigenous to our 
institutions, whatever partakes of absolutism, is utterly foreign to 
us in a political sense. We care not where a ruler comes from, if 
his will, instead of our law, is to govern. Abraham Lincoln is a 
foreigner to us, when he rules in opposition to the Constitution of 
the United States. 



NOTES. 

The Constitution and its Dangers. — Lord Brougham, in the House of Com- 
mons, June 23d, 1817, says: 

" It is now reckoned childish or romantic to profess any veneration for the 
Constitution of the country, or respect for popular rights. My honorable friend 

2* 



34 FREE GOVERNMENT. 

(Sir S. Romilly) has been taunted with romance for defending its general princi- 
ples ; but I will say, that, if it is a romance, it is a romance which has given us 
all the advantages which those who know not their origin cannot overlook. It 
has made us the admiration and envy of our neighbors ; and by frequent dere- 
lictions of it, like the present, we shall soon cease to be the only free and happy 
country in Europe, or in the world. If the house thinks to do its duty to the 
country by agreeing to every unconstitutional measure at the bare suggestion of 
the minister — if you think you will be doing jour duty to your constituents by 
refusing to investigate their complaints, and by rushing headlong, without in- 
quiry, into every measure which is recommended against them — if the new doc- 
trine of confidence in ministers, whoever they may be, obtains, I should then 
say that it is a matter of little consequence in which form the constitution 
exists — the substance is gone. It is plainly avowed that it is fit only for fair 
weather— to be got rid of as soon as a storm arises — and that the rights of the 
people of England are not to be held even during their good behavior, but at the 
good will and pleasure of the ministers of the crown." — Brougham's Opinions, 
p. 96. 

"I know that the general answer to all that has been hitherto alleged on this 
subject is that martial law had been proclaimed at Demerara. But, sir, I do not 
profess to understand, as a lawyer, martial law of such a description ; it is en- 
tirely unknown to the law of England. I do not mean to say in bad times of our 
history, but in that more recent period which is called constitutional. It is very 
true that formerly the crown sometimes issued proclamations, by virtue of which, 
civil officers were tried before military tribunals. The most remarkable instance 
of that description, and the nearest precedent to the case under our considera- 
tion, is the well-known proclamation of the august, pious, and humane Philip 
and Mary, stigmatizing as rebellion, and as an act that should subject the offender 
to be tried by a court martial, the having heretical, that is to say, Protestant, 
books in one's possession, and not giving them up without previously reading 
them. 

" Similar proclamations, although not so extravagant in their character, were 
issued by Elizabeth, by James I., and (of a less violent nature) by Charles I., 
until at length the evil became so unbearable that there arose from it the cele- 
brated Petition of Right, one of the best legacies left to this country by that il- 
lustrious lawyer Lord Coke, to whom every man who loves the constitution 
owes a debt of gratitude, which unceasing veneration for his memory can never 
pay. 

" The Petition declares that all such proceedings shall henceforth be put 
down ; it declares that ' no man shall be forejudged of life or limb against the 
form of the Great Charter,' that * no man ought to be adjudged to death but by 
the laws established in this realm, either by the custom of the realm, or by acts 
of Parliament ; ' and that ' the commissions for proceeding by martial law should 
be revoked and annulled, lest, by color of them, any of his majesty's subjects be 
destroyed, or put to death contrary to the laws and franchise of the land.' Since 



ITS CHARACTER AXD OFFICE. 35 

that time no such thing as martial law has been recognized in this country ; and 
courts founded on proclamations of martial law have been wholly unknown. And 
here I beg to observe that the particular grievances at which the Petition of 
Right was levelled were only the trials, under martial law, of military persons, 
or of individuals accompanying or in some measure connected with military per- 
sons. On the abolition of martial law, what was substituted ? In these days a 
standing army in times of peace is considered a solecism in the constitution. 

" Accordingly, the whole course of our legislation proceeded on the principle 
that no such establishment was recognized. 

"Afterwards came the annual Mutiny Acts, and courts martial, which were held 
only under those acts. These courts were restricted to the trial of soldiers for 
military offences, and the extent of their powers was pointed out and limited by 
law."— Ibid., 220-222. 

Trial by Jury. — "The jury are sometimes right when the judge is wrong. 
Judges themselves sometimes admit that they took, what they afterwards found 
out to be, a wrong view of the case, while the jury took a right one ; and how 
can it be otherwise than a frequent case ? One may be very excellent for de- 
ciding a point of law ; nothing can be better than one for superintending a jury, 
from his long experience and long practice ; but twelve men are much better for 
deciding in cases where there is conflicting evidence, and where that evidence is 
to be brought before them in an uncertain shape, because there are a great 
variety of points in the case ; one man takes one view, and another another, each 
taking it, as it were, by a different handle, until, by reflection and argument, 
they come to a unanimous decision. Nothing can be better, I am convinced, 
than the decision of these twelve men, instructed as they ure by the counsel and 
the judge." — Ibid., vol. ii. p. 80. 

Right of the Subject to Demand Protection from the Crown. — " Protection, 
your lordships are aware, protection affording security of person and property, is 
the first law of the state. The legislature has no right to claim obedience to 
its laws, the crown no right to demand allegiance from its subjects, if the legis- 
lature and the crown do not afford, in return for both, protection for person and 
property. Without protection, the legislature would abdicate its functions if it 
demanded obedience ; without protection, the crown would be an usurper of its 
right to enforce allegiance." — Ibid., p. 94. 

Effects of Oaths in Weakening the Moral Principle. — " Increasing unnecessari- 
ly the number of oaths to be taken operates injuriously in a twofold manner — it 
not only diminishes the sanctity of an oath, and begets an indifference to what 
ought to be a high, moral, and religious ordination ; but it hath another ten- 
dency, to check the law in its course in punishing crime. Everything that 
diminishes the sanctity of an oath begets a carelessness about swearing, and 
generates a habit of perjury and prevarication, which those who have to admin- 
ister the law know to be the most difficult thing to deal with." — Brougham, vol 
ii. p. 109. 



CHAPTEE II. 

THE STATE AND FEDERAL GOVERNMENTS. 

THEIR UNITY — THE STATE EXCLUSIVE JUDGE OF PROHIBITED POWERS — THE UNION 

NOT A CIVIL POLITY NOT A DEMOCRACY — PERSONS AND MAJORITIES HOW 

REGARDED — THE SLAVERY QUESTION ITS ALLEGED INCOMPATIBILITY WITH 

FREE INSTITUTIONS — THE LAW OE ITS EXISTENCE AND ITS EXTIRPATION. 

Now, let us consider that the States of the Union, in respect to 
all ordinary matters of government, are just what they have ever 
been since the first organization of civil institutions in this country. 
For example, the State of New York is just what she was a centu- 
ry ago, an independent State, having an executive, legislative, and 
judicial department. Scarcely an acre of its territory, or a notice- 
able fraction of its political rights, or an iota of its liberty, as a free 
State, has ever been surrendered. The control of its foreign rela- 
tions, the coining of money, postal matters and a few other specific 
interests, of a general nature, were transferred, not to an independ- 
ent power, but to a power of its own creation and government. 

In making this transfer, it is hardly possible that New York 
intended in any sense, to make herself a subject State, not even 
in reference to those things over which she declared the authority 
of the United States supreme. The supremacy here accorded is 
strictly legal in its nature, partaking far more of exclusive jurisdic- 
tion over the subjects than of dominion. 

The general and the State law, so far as the people of the 
State are concerned, are identical — they are both, to all practical 
intents and purposes, the laws of the State. The Government of 
the State draws to it and makes part of it, all laws of the Union, 
made in obedience to the Federal Constitution. 

This expresses the true unity of the system. It does not admit 
the existence of two governments. It is all one system. By so 



THE STATE AND FEDERAL GOVERNMENTS. 37 

treating it, it is possible to maintain the rights and dignities of the 
States on the one hand, and the integrity of the confederation on 
the other. 

It is nothing to the American people how persons abroad shall 
see them. Whether the G-eneral Government is regarded as the 
embodiment of power and the aggregation of legal authority or not, 
is of no consequence. We are viewing the structure of our insti- 
tutions, not a picture exhibiting their lights and shadows from a 
distant standpoint. They are extremely complicated, and, as we 
have found, most difficult of enforcement. The latter is due to the 
practical recognition, by the States, of two distinct, and in many 
respects, antagonistic polities. 

It may seem anomalous, and extra -speculative, to maintain, in 
the face of what has been written, said, and done by the people, that, 
instead of two systems, we have, in reality, but one. Nevertheless, 
if we regard the true structure of the States, and the objects they 
sought to accomplish in ordaining the Union, it seem3 impossible 
to come to any other conclusion. As we have departed from this 
vital doctrine of union, by recognizing the independent power and 
authority of the General Government, making it not only supreme 
over delegated interests, but building it up as a colossal foreign 
state, in many respects, so have the signs of discord and civil 
commotion multiplied upon us. 

It is folly, and something worse, to suppose that two schemes of 
independent government can be maintained. We must have unity 
in fact as well as name. It is not in the power of human wisdom 
and integrity to maintain independent government in the States, 
and the independent government of the Union, unless it be on the 
basis that the latter is purely the government of the States, having 
no separate mission whatever. 

Accountability, except as to those matters which have been 
delegated to the Union, must ever be to the States. They remain 
in the confederation as its only sustaining power. They fill, from 
their citizens, all its offices, executive, legislative, and judicial. It 
is their duty to see that its laws are faithfully executed, because it 
is their government for specific national purposes — what Mr. 
Hamilton called their political, in con tradistinction to their civil or 



38 THE STATE AND EEDEEAL GOVERNMENTS. 

State Governments. It is their duty to see that its powers shall be 
executed just as they were delegated ; because that was their agree- 
ment. Just as they were delegated ! It is as much a violation of 
the compact to exercise the least Federal authority not delegated, as 
to refuse to carry into effect the delegated powers. To refuse to 
send Senators and Members of Congress to the Federal capital, to 
neglect to appoint a Federal judiciary, would be a violation of the 
Constitution, but no more so, than for the Senators and Members 
of Congress and judiciary to assume to exercise unwarranted 
authority. Concerning all delegated powers, the judiciary is made 
the exclusive judge. That is the agreement. But in respect to 
the prohibited powers, the States have retained the right of exclu- 
sive judgment. From the character of the compact, the parties to 
it, and the ends sought to be accomplished, we hold this law of 
construction to be equally necessary and reasonable. It is necessary, 
because the parties to the compact remain in the Union, as sover- 
eign, independent States. These attributes make it clear that they 
ought to retain the exclusive right to judge of all matters affecting 
their systems of local government, which they did not expressly 
delegate. This right cannot be relinquished without placing it in 
the power of the Union to sweep away all State institutions and 
laws. Self-preservation demands that they shall retain it. It is 
the vital element of local freedom and independence. 

The best reasons of State policy also demand it. It is just as 
necessarj- that the Union should be kept within the strict letter 
and spirit of its organic law as that the States should preserve their 
freedom and independence. We need not be told that the ex- 
tinguishment of either of these elements of State government would 
result only in their transfer to the Union, and not in their destruc- 
tion. That, we know, is the theory of many persons intrusted with 
the discharge of Federal duties. But it is not the theory of the 
Union. It is dominion, which such men want, not a free system 
of laws — it is individual, discretionary government, and not the 
ancient free institutions of this country, without which, in all their 
integrity, it will be found impossible, for many years, to rescue the 
people from anarchy and bloodshed. 



THE STATE AJTO FEDERAL GOVERNMENTS. 39 

This rule of construction will be found, too, on examination, to 
be entirely consistent with the provisions of the Constitution. 

It is hardly necessary to say that that compact delegates 
certain powers to the United States ; declares that none other shall 
be exercised; and that the powers not delegated nor prohibited to 
the States, shall be retained by them respectively or the people. 
After enumerating all the delegated powers, and prescribing, in 
many cases, in what manner, where and how, they shall be executed, 
a schedule of prohibitions is added. It is declared, for instance, 
that " the freedom of speech and of the press. shall not be abridged." 1 
This is the declaration of the States to the General Government, 
a declaration which constitutes no part of that government, confer- 
ring no power upon it, intended, not only to limit its authority over 
persons and property, in respect to free speech and a free press, but 
to affirm the exclusive jurisdiction over both by the States. It is 
manifest, then, that the Federal judiciary and all Federal officers, of 
whatever character, are utterly prohibited from the least control 
over these rights of the people : first, because they are natural, or 
what the Constitution denominates reserved rights ; and secondly, 
because the governments of the States never delegated to the Union 
the least control over them. 

A reference to the delegated powers will render this conclusion 
still more satisfactory. 

The Federal system embraces exclusive authority over the rev- 
enues, postal accommodation, the coinage of money, weights and 
measures, and a few other interests of a general nature. These are 
Federal matters, not because they differ essentially from others 
reserved to the people, but because their management was turned 
over to the Union. They are the subjects of its jurisdiction. It 
would be folly to question the authority of the United States over 
any of the delegated powers ; but a much greater folly to concede 
the least authority over subjects not delegated, and worse still over 
matters specifically reserved or prohibited. 

These reservations and prohibitions mean nothing, if they do 
not assert the exclusive jurisdiction of the State over all the subject 
matters embraced in them. The States must take care of their 
citizens, when their liberty and rights are taken away. The policy 



40 THE STATE AND FEDERAL GOVERNMENTS. 

of the law demands, in all cases, that it shall never be placed in 
the hands of individuals to maintain their rights, however plain. 
Resort must be had to the tribunals of justice* It is the State's 
business to execute justice. It is, then, where a citizen has been 
deprived of either liberty or property, by persons without authority, 
or by Federal officials, without authority, far more an offence 
against the State than the injured person. The latter is powerless, 
while the former is an independent member of the confederation, 
and as such is bound by all the dignities and obligations of nation- 
ality to vindicate the rights of its citizens, especially against every 
Federal aggression. We say especially against Federal aggression, 
because aggression from that quarter is first to be resisted, as a 
double means of preserving the Union on the one hand, and the 
independent authority of the States on the other. 

The real character of the Union, as a limited state, must not 
be overlooked. It was no part of the design of the States, in cre- 
ating it, to establish a civil polity. Their civil institutions were 
already complete ; and they were based on the clearest written 
guarantees of freedom, and sustained by a public sentiment which 
had never recognized, in government, any other principle. Just 
relieved of an oppressive war, and threatened by the antagonistic 
polities of Europe, they saw the necessity of cooperation in respect 
to certain matters of government. It was believed by quite all the 
leading statesmen of the day, that one foreign intercourse, com- 
merce, and navigation, one currency, one postal accommodation, 
and a few other matters of a general nature, would add strength to 
the parts and greatly advance their material interests. The Union 
was ordained on precisely this basis. 

It took the form of an independent government, and was clothed 
with the powers of such a government touching the interests to 
which we have referred, but in nothing else. To a political system, 
embracing original authority over the people, with powers of legisla- 
tion, a judiciary, and an executive, it bears little resemblance. It 
has but few of the attributes of such a polity. There was no occa- 
sion to put in force any such scheme. All that was required of 
that kind of government, already existed in perfection, as is abun- 
dantly shown in the fact that the States which ordained the Union, 



THE STATE AND FEDERAL GOVERNMENTS. 41 

without a single exception, maintain the exact forms of administra- 
te) 1 to-day that they then did. This fact is positive proof of two 
thiugs : 

First, that the Union was not intended to be a free civil polity, 
in any just sense, but a compact of States of a political nature, for 
certain economical purposes ; second, that the States intended to 
retain their right to continue to exercise sovereign authority over all 
those interests which they had not delegated to the Union. 

It makes nothing against this theory, that, in ordaining the 
Union, they minutely denned its powers, and, in so many cases, 
forbade the exercise of others. There was, unquestionably, suffi- 
cient power conveyed to render this precaution necessary. The 
men of the Revolution were no believers that the wisdom and in- 
tegrity of mankind were sufficient guarantees to assure the freedom 
of the people, in the absence of positive restraints and prohibitions. 
They knew that power was inclined to strengthen itself by exercise. 
They had authorized the creation of an army and navy, for pur- 
poses of defence and security ; and they accompanied this authori- 
zation by every conceivable guarantee, that neither should ever be 
wielded except against the enemies of the people. 

A free system of laws, and all the details of practical govern- 
ment, they had enjoyed from the very origin of society in America. 
They were indebted, in point of fact, to their isolation, ami to the 
perils of frontier life, for this. So that, in ordaining the Union, it 
was their settled purpose, not to create a new system, but to extend 
the old one, on such terms, limitations, and restrictions, as would 
preserve the freedom and independence of the people. They pro- 
ceeded upon the theory that the surrender of free speech, a free 
press, and the least measure of personal rights and property, was in 
no contingency necessary to the maintenance of good government ; 
that, on the other hand, such surrender, by removing an effective 
restraint, would be justly construed as a license for the commission of 
the gravest crimes on the part of the public administration. It would 
change, at once, the very character of the whole scheme, make the 
agent the principal, the States subject parties, and the Union an 
imperial power. That such a polity is not what was designed to 
be created, that it is utterly incompatible with a free system of 



42 THE STATE AND FEDERAL GOVERNMENTS. 

government, and that it would be impossible to maintain it in this 
country, we hold to be equally clear. And if this is true of the 
whole, it is true of every part of it. We are entitled to absolute 
freedom, in respect to all the interests referred to, or we are enti- 
tled to none. The people are supreme, under the forms of their 
own established government, or the government is supreme over 
them. There is no middle ground to be occupied in this matter. 

There is, we are aware, a wide distinction between a free people 
and a free system of laws. We are discussing the latter on the 
bases of the existing institutions of the States and of the Union, 
neither embracing, by any fair construction, the least jurisdiction 
or legal control over the liberties or property of the citizen. All 
that was sought to be accomplished was the establishment of 
rules regulating and governing the ordinary relations of the people, 
so that each individual member of the body politic might be pro- 
tected in person and property. We have passed from a mere 
democracy to a government of laws. We have surrendered the 
control of majorities to the domination of an agreement, by which 
all matters of state are to be determined. This agreement was 
not entered into for the purpose of protecting majorities, for they 
can take care of themselves, but for the purpose of protecting mi- 
norities, even down to the least worthy citizen of the common- 
wealth. 

The former, in the absence of legal restraint, are absolute, or, 
rather, their action is itself law. It is so simply because, in such 
case, majorities can be held to no account — they are the state. 
There are neither moral nor logical elements in such a system of 
government. Personal liberty and popular tyranny, absolute free- 
dom and the most degrading bondage, unrestrained dominion and 
hopeless subjection, are rudely blended into one scheme of adminis- 
tration. 

A government of laws, whether free or otherwise, is impossible 
on any other basis than the protection of minorities. That of the 
States and the Union exhibits this principle perhaps more perfectly 
than any other known to history. We speak, of course, of the 
theory and philosophy of the polity, and not of its practical work- 
ings ; for in the latter we find far more acts tending to its subver- 



THE STATE AND FEDERAL GOVERNMENTS. 43 

sion than its maintenance. Judged by what we have done since 
the adoption of the Federal Constitution, it would seem that, 
instead of a government of States, bound together for certain speci- 
fied general purposes, we have a government of majorities ; instead 
of a free S) T stem of laws, carefully guarding the rights of minorities, 
and limiting the power of majorities, we have a government of 
majorities. Their actual control of the administration, at least, fa 
incontestable. Their right to govern is also widely asserted. This 
right can be contested only by showing that the Union was adopted 
on another basis — that the voice of a majority is entitled to no more 
weight than that of the smallest minority, in support of any meas- 
ure which violates the Constitution of the United States, or the 
rights of the people of the States which have been reserved. The 
controlling power is in the compact of union. Majorities can legal- 
ly govern only within the scope of that compact. 

It must not be assumed that we regard majorities as always 
in the wrong, or disposed to act in opposition to the public welfare. 
Far from it, especially in a country like this, where the people 
have the amplest means of acquiring information of public affairs. 
It is, perhaps, the misfortune of an elective republic, that when the 
majority-rule once gets control of the government, in opposition to 
its organic law, it is capable of tainting the whole scheme. And. 
justly so, because it shows not only a determination not to abide 
by the agreement, but a spirit of shameless persecution of those 
who insist upon its fulfilment. It may be that the majority is 
quite in the right, judged by any other standard than that of the 
compact. It would be great folly to maintain the perfection of 
any system of government. But if errors exist in the system, it 
is far better to effect its modification in a legal way, than to over- 
throw it by the despotic will of majorities. 

A complete illustration of these reflections is found in the ca- 
reer of the States and the Union touchiug the slavery question. 

It must be admitted that a majority of the people of the States 
are hostile to slavery ; but it is equally true, that under the Con- 
stitution of the United States, the Government of the Union could, 
in no manner and in no place, except in the District of Columbia, 
gain jurisdiction of slavery. There is not one provision of the 



44 THE STATE ATSTD FEDERAL GOVERNMENTS. 

compact of Union which, directly or by implication, confers such 
jurisdiction. 

Nevertheless, it is a historical fact, that the slavery question 
has occupied a large portion of the time of Congress for the last 
fifty years. Nor has it been a mere idle debate in that body, upon 
the moral attributes and character of this relation. Congress, by 
the sole agency of majorities, by the instructing power of majori- 
ties, by the mad will, command and imperious dictation of ma- 
jorities, has not only assumed jurisdiction of the subject, but legis- 
lated upon it, abolished it where it existed, prohibited its intro- 
duction where it did not exist ; and finally, in the ordinary course 
of usurpation, assumed to exercise unlimited control of it in every 
part of the Union. 

No well-informed and we T l-disposed man will maintain that this 
action of Congress is authorized by the States or the compact of 
Union. And no student of government will venture to say, that 
such action was consistent with the maintenance of a free system 
of laws. It was neither. Laws must, under our scheme, be su- 
preme over individuals and majorities, or they are nothing. What- 
ever might be the result of a radical violation of the laws under 
other governments, their complete maintenance in this country, 
since the adoption of the Federal Constitution, is absolutely neces- 
sary. The more so here, because the structure of our institutions 
is of a compound nature, embracing many separate and distinct 
nationalities in one General G-overnment, created by compact, by 
and between those nationalities. It is not, then, purely a scheme 
of laws, but a compact of States also, leaving no discretionary au- 
thority to alter or suspend either, and making the life of both to 
depend entirely upon their rigid and complete enforcement, in 
every essential particular. 

Whether the existence of slavery was compatible or not with the 
establishment of such a system, is another and utterly foreign ques- 
tion. It is to be observed that in ordaining the Union, slavery was- 
an institution already legalized, extending to quite all the States of 
the original confederation. It is manifest, then, that those who main- 
tain the incompatibility of slavery with free institutions, are bound 
to go farther, and show that the States of 1789 were incapable, by 



THE STATE AND FEDERAL GOVERNMENTS. 45 

reason of the existence of slavery, of ordaining snch institutions. 
This argument, we apprehend, followed to its legitimate end, ac- 
complishes more than the enemies of slavery, at the present time, 
desire. It was one of their weapons, used in demolishing the 
bulwarks of the Constitution, but now that they have removed the 
obstacles in the way of federal jurisdiction and are wielding the 
powers of the Union to override the States and slavery together, it 
is no longer necessary to impeach the legal authority of the old 
Union, on the ground of its incompatibility with slavery. This 
authority was the legitimate subject of overthrow by majorities, 
until those majorities got control of it. It was illegal and void so 
long as it refused to recognize the mission of anti-slavery. It is 
legal, binding and sacred, in the exclusive execution of such mis- 
sion. 

We bring up this subject, not with a view of the least exami- 
nation of the abstract question of slavery. Right or wrong, it is 
a purely domestic interest, which those who maintain must defend. 
It was so regarded by all the States when they ordained the 
Union. It was so left by the compact of Union. Whatever has been 
done since, by the President or Congress, to change its status, we 
hold to be evidence of the ignorance of the people of what was 
required to maintain a free system of laws. In this work the laws 
have been subordinated to the dominion of individuals. 

Whatever may be the public judgment on the subject of slavery, 
we are bound, at least, to acknowledge its existence in this country. 
This simple fact brings before us more than four millions of people 
of an inferior race. To release them from bondage and make them 
coequal inhabitants with a dominant superior race, would be a 
fearful experiment indeed. We have no right to disturb the pres- 
ent order of things, except on the basis of the improvement of the 
condition of the blacks. The naked assertion of their right to free- 
dom goes for nothing, unless by freedom we mean to assure their 
improvement. Freedom to a people disqualified to maintain their 
rights, is of no possible advantage. The recent establishment of 
republican government, in France, did not actually enfranchise that 
people. Invention is valueless to those who know nothing of its 
uses or the process of its operation. The daily experience of the 



46 THE STATE AND FEDERAL GOVERNMENTS. 

whole world attests the truth of these suggestions. Our own recent 
history exemplifies it. It is as applicable to Dations as to individ- 
uals. Its force was never more apparent than in the treatment of 
the slavery question. Granting the ability of the negro race to 
maintain free government, if separated from the whites, it will 
hardly be contended that they will be able to cope with the latter, 
as coequal inhabitants. The races are certainly antagonistic. The 
one or the other will have dominion ; which, we apprehend, it is not 
difficult to determine. It is, in this view, simply impossible to 
benefit the negroes by abolishing slavery. If there is no other 
mode by which they can be improved in condition, their welfare 
demands that they shall, for the present, at least, be let alone. 
What the future holds in promise for them, it is not for us to de- 
termine. There is not a day's observation, or a single lesson of 
experience, which does not teach us that there is a fitting time for 
all things. Perhaps this admonition is more impressively conveyed 
to the American people in the history of slavery, in this country, 
than anywhere else. The process and progress of its expulsion 
here and there, its removal from one State and its introduction into 
another, show clearly that there is a law which not only governs its 
existence, but which will, in the work of time, effect its overthrow. 
Great caution, we know, is required in dealing with all such 
questions. They are too apt to be viewed as mere abstract mat- 
ters. In this way we come to the ready conclusion, that slavery 
ought, at once, to be abolished ; simply because to hold man in 
bondage, is wrong and sinful. This reasoning is conclusive with 
all men who view the subject in the abstract. But in point of fact 
slavery exists in this country, as it must in every other, as a social 
institution. It is involuntary labor rendered by an obviously in- 
ferior race, to a superior race. Its violent overthrow, in the very 
nature of things, must produce general disorder, anarchy, and 
bloodshed. If the blacks could be removed from the country and 
assisted to maintain civil government, the knowledge they have ac- 
quired solely through the agency of bondage, might be sufficient to enable 
them to better their present condition. As a competing race pf 
freemen, with the white inhabitants of this country, they are certain 
to fail. We have the most complete and overwhelming testimony 



THE STATE AND FEDERAL GOVERNMENTS. 47 

upon this point, in the career of the free Indian tribes. They were 
not ouly free, but organized into nations. We met three millions 
of them, and never once made an effort to subject them to our 
laws. They were our competitors for empire and dominion, in the 
field of mind and labor. They now number about three hundred 
and fifty thousand persons. This result, surely, has not been 
brought about by undue oppression on our part. On the contrary, 
we have sought, by every means which genuine benevolence and 
humanity could suggest, to elevate them in the scale of moral and 
Christian life. We have instructed them in the use of machinery, 
and taught them lessons in agriculture. But all to no purpose. 
There was one lesson they never could understand — how to take care 
of themselves. Right on the opposite page of our history is written 
an account of another inferior race, who have been held in slavery 
to the whites. They have increased from a few hundred thousand 
to four and a half millions. They were once held by all the Ameri- 
can States. As population crowded on production, their labor be- 
came unprofitable here and there, and this was sure, in a little time, 
to abolish the relation. This, we apprehend, is the only legiti- 
mate process of its extinction. We doubt, indeed, if it is the moral 
right of any State of the Union to abolish slavery by any other 
means. The blacks are entitled to protection, and they can secure 
it only by remaining as they are, subject to the law referred to. 

There are two radical passions which may be counted as the pe- 
culiar and ever-active enemies of free government — partisanisrn and 
fanaticism. The former is inherent in the system, or rather, the 
necessary production of elective institutions. It is a pervading 
and damaging evil. 

Civil liberty presupposes intense political action through all 
the organs of the body politic. Without necessarily involving the 
equality of the whole people, it opens the way to every citizen, by 
which it is made possible to secure, not only equal consideration in 
the State, but command its highest offices and honors. The very 
statement of this feature of free institutions is quite enough to show 
that intellectual progress under it is greater than under absolute or 
despotic rule. There is more expansive power in every view, more 
energy, more mind, more thought, more invention, and, we appre- 



48 THE STATE AND FEDERAL GOVERNMENTS. 

hend, far more material production. It would be an exception to 
all rules, if there should not be found something to counterbalance 
these great benefits and advantages of civil liberty. It is not often 
that blessings are dispensed without something to remind us that 
they are to be enjoyed only on certain conditions. The wisdom of 
a free system of laws, when wisely administered, none will question. 
But the very advantages it assures are often the cause of its failure. 
This is especially the case in the almost necessary, certainly most 
probable, growth of partisanism. It springs immediately out of the 
scramble for office and place which is sure to result from the num- 
ber and character of claimants. These persons may enter the field 
full of patriotism and purpose to promote the general good. In a 
little time they consult public prejudices, and shape their course 
more by what will promote their own interest than that of the state. 
It is easy to see, in this way, how the people may be led to give 
their allegiance to party, and actually to forget or overlook the 
obligations of their laws. 

These suggestions find the completest verification in the progress 
of slavery and anti-slavery in the United States. Yery much of 
the hostility, so far as the great body of the people is concerned, to 
slavery, has a purely partisan origin. It has been promoted as a 
means of acquiring office and government. It has grown, in numer- 
ous instances, to be stronger than patriotism, stronger than the 
Constitution. The natural product of this hostility to slavery, one 
which could hardly fail to follow its connection with elective insti- 
tutions, is fanaticism. This species of lunacy is far less reasonable 
and more difficult to govern than the other. It is a sort of hur- 
ricane which sweeps everything before it. All its powers are con- 
centrated upon one object. Everything else is lost in the pursuit 
of its one cherished end. It may be temperance to-day, native 
Americanism to-morrow, slavery next, Catholicism next, masonry 
next, and so on to the end of its mission. History is a falsehood, ex- 
perience a deception and a snare, Christianity a cunning fraud, when 
they cross the path of these monster enemies of free institutions. 

They have issued an edict against slavery. They are armed for 
its overthrow. They are now fighting battles for its extirpation. 
What they have done and what they have sacrificed, no man can tell. 



THE STATE AND FEDERAL GOVERNMENTS. 49 



NOTE. 

1. Liberty of the Press. — Jeremy Benthain, in his letter, written in 1820, to 
the Spanish people on the subject of the freedom of the press, says : " Span- 
iards ! Tbe Madrid intelligence of the prosecution of a newspaper editor for 
comments on the Madrid system of police, and of the proposed law against po- 
litical meetings, has just reached me. I am astounded ! What? is it come to 
tiiis? So soon come to this? Tbe men being men, of their disposition to do 
this, and more, there could not be any x'oom for doubt. But that this disposi- 
tion should so soon ripen into act, this (I must confess) is more than I antici- 
pated, that the impatience of contradiction, not to say the thirst for arbitrary 
power, should so soon have ventured thus far ; these in my view are of them- 
selves highly alarming symptoms. By the prosecution, if successful, I see the 
liberty of the press destroyed ; by the proposed law, if established, I see the 
almost only remaining check to arbitrary power destroyed. Taken together, 
they form a connected system — these two measures. By the authors of this 
system you have of course been told, that it is indispensably necessary — neces- 
sary to order, to good order, to tranquillity — and perhaps honorable gentlemen 
may have ventured so far into the region of particulars and intelligibles as to 
say, to good government, and some other good things. Spaniards ! It is neither 
necessary, nor conducive to, nor other than exclusive of, any of those good 
things. What says experience ? In the Anglo-American United States ( alas ! 
alas ! when Bentham wrote he wrote truth, but were he living now he could 
scarcely refer, with any good effect, to this country to support his views), of the 
two parts of this system, neither the one nor the other will you see. No pros- 
ecution can there take place for anything written against the Government, or 
any of its functionaries as such. No restriction whatever is there on public 
meetings held for any such purpose as that of sitting in judgment on the Con- 
stitution — on any measures of the Government — or on any part of the conduct 
of any of its functionaries. There is no more restriction upon men's speaking 
together in public than upon their eating together in private. 

"Against the allowance of the liberty of the press, considered with a view to 
its effect on the goodness of the government, no arguments that have been or 
may be adduced will bear the test of examination. 

" I. First comes dangerous. Dangerous it always and everywhere is ; for it 
may lead to insurrection, and thus to civil war ; and such is its continual ten- 
dency. 

"Answer : In all liberty there is more or less of danger; and so there is in 
all power. The question is — in which there is most danger — in power limited 
by this check, or in power without this check to limit it. In those political com- 
munities in which this check is in its greatest vigor, the condition of the mem- 
bers, in all ranks and classes taken together, is, by universal acknowledgment, 
the happiest. These are the United States, and the kingdom of Great Britain 
3 



50 THE STATE AND FEDEEAL G OYEEK51EXTS. 

and Ireland. In the republic this liberty is allowed by law, and exists in per- 
fection : in the kingdom it is proscribed by law, but continues to have place, in 
considerable degree, in spite of law. 

" II. Next comes Heedlessness. To the prevention of misgovernment, the other 
remedies that government itself affords, are adequate. The rulers in chief, who- 
ever they are, have nothing so much at heart as the happiness of all over whom 
they rule. 

u Answer : The rulers in chief, whoever they are, if they are men, have their 
own happiness more at heart than that of all over whom they rule put together : 
the very existence of man will in every situation be found to depend upon this 
general and habitual self-preference. 

" As to wisdom, it can never be so near to perfection without as with these 
all-comprehensive means of information, which nothing but the liberty here in 
question can give. The characteristic, then, of an undespotic government — in 
a word, of every government that has any tenable claim to the appellation of a 
good government — is the allowing and giving facility to a free communication 
of thought by vehicles of all sorts; by signs of all sorts; signs to the ear, signs 
to the eye, by spoken language, by written, including printed language, by the 
liberty of the tongue, by the liberty of the writing desk, by the liberty of the 
post office, by the liberty of the press?' 1 



CHAPTEE III. 

THE JUDICIARY. 

ITS OFFICE IN A GOVERNMENT OF LAWS ITS HIGH TRUSTS AND DUTIES — SUSPECTED 

AND CONVICTED PERSONS HOW REGARDED HABEAS CORPUS — EXTRA-CONSTI- 
TUTIONAL MEASURES — DEVICE FOR VIOLATING LAWS BOLD USURPATIONS 

THE UNION A BROTHERHOOD — ACCOUNTABILITY OF FEDERAL OFFICIALS TO THE 
JUDICIARY — THE EQUILIBRIUM OF THE SYSTEM. 

The judicial department of a free system of laws, is by far the 
most important of all the branches of the public service. With no 
legislative power or partisan influence, its sphere is confined to the 
execution of the weighty trusts devolved upon it, by the state on 
the one side, and the people on the other. It is purely an umpire, 
with power to enforce existing laws. It contemplates all public 
institutions as a party, and recognizes its duty to protect them. 
The people are also a party, and entitled, in like manner, to protec- 
tion. The judicial power of the state, in this general sense, is 
called upon to exercise, what may be termed, political functions. 
The relations between the people and their Government are purely 
reciprocal. Obedience to laws is no more a duty of the former, 
than their honest enforcement by the latter. Their violation, by 
either, is a crime. 

These reflections indicate the general office of the judiciary. 
It is the exclusive judge of what is due to the state and what is 
due to the citizen. 

The constitution of the Federal Judiciary limits its power to 
nine specific trusts : 

1. " To all cases in law and equity arising under this Constitu- 
tion, the laws of the United States, and the treaties made or which 
shall be made under their authority. 

2. " To all cases affecting ambassadors, other public ministers, 
and consuls. 



52 THE JUDICIARY. 

3. " To all cases of admiralty and maritime jurisdiction. 

4. " To controversies to which the United States shall be a 
party. 

5. " To controversies between two or more States. 

6. " Between a State and the citizens of another State. 

7. " Between citizens of different States. 

8. " Between citizens of the same State, claiming lands under 
grants of different States. 

9. " Between a State and the citizens thereof and foreign states, 
citizens, or subjects." 

The first of these specific delegations of power, is far more 
general and comprehensive than the others, extending to all cases 
in law and equity arising under the compact of Union. If 
this language bears any signification, beyond a mere limitation of 
jurisdiction to the federal system, it makes the judges of the 
Supreme Court of the United States a tribunal, with exclusive 
power to determine, not only the rights of litigant parties in suit, 
but the constitutionality of all federal laws which shall be brought 
before it for enforcement. In this respect, the "judicial power," 
as it is denominated, is intrusted with the very highest of political 
functions. It is as much its duty to interdict the enforcement of 
illegal acts as to execute those which are legal. 

It has been found, in the practical life of every description of 
administration, that the judicial authority has maintained, through 
every trial, a far higher tone ; more incorruptible integrity ; more 
capacity and disposition to allay excitement, reconcile differences, 
and adjust disputes personal and general, than any other branch of 
the public service. Less ostentatious than the legislature, unob- 
trusive and almost unnoticed in its deliberations ; earnest, pro- 
found and impartial in its decisions, it commands public confidence, 
and exacts a willing obedience to its awards. It is preeminently 
the tribunal of the people ; an umpire, with power, not only to 
determine all controversies between persons, but an international 
commission to adjust questions of difference between the States and 
the Union and the citizen and the Union. * 

In the enforcement of all local laws, embracing the internal 
administration of justice through the whole range of civil institu- 



THE JUDICIARY. 53 

tions, the collection of debts, the punishment of crime, the main- 
tenance of order, the judiciary is the mainspring of the political 
machine. It is, to all intents and purposes, the animating prin- 
ciple of the state. 

Under general regulations, covering the ordinary intercourse of 
life, it exercises absolute power. The character of its administra- 
tion is indicated by the fact, that its decisions constitute a body of 
laws, of higher merit and wider influence than those ordained by 
the legislature. It is impossible indeed to conceal this feature 
of the government of the States and the Union. That there is 
something in the structure of these great departments of adminis- 
tration, or in the nature of the duties assigned to each, which 
enables the judiciary to command higher qualifications and intel- 
lect, we do not question. 

In this connection it is a noteworthy fact that of all the com- 
plaints made by parties and sections against the general Adminis- 
tration, involving, in many cases, alleged violations of the Consti- 
tution, and in others, of fundamental principles of political econo- 
my, not one has been laid at the door of the judiciary. Usurpation 
of authority has been charged upon the Executive and the legis- 
lature, and, at times, a general tendency to disregard constitutional 
obligations and duties manifested; but we know of no instance, 
beyond the lowest partisan circles, where the judicial authority of 
the States or the nation has been held responsible for the least 
offence of the kind. 

It must not be admitted, in explanation of this, that its office 
is comparatively of little account. On the contrary, in a govern- 
ment of laws, it is by far the highest, most important and respon- 
sible of all the institutions of state. Its range is broader; its 
duties more weighty and elaborate ; its government more complete 
and universal ; its trusts more sacred ; and, we may add, its de- 
cisions more satisfactory, than any other department. It is the 
state, to all practical intents and purposes. When the privilege of 
the writ of habeas corpus was partially suspended in England, Mr. 
Burke denounced and declared it a dissolution of government. In 
this denunciation we see the true theory of the English Constitu- 
tion. It is a free system of laws, and such a system is impossible 



54 FKEE GO VEHEMENT. 

on any other basis than the maintenance of a free, impartial, and 
unrestricted judiciary. This freedom, too, must be absolute. It 
must be, as Goethe says, " a courageous magistracy," for that is the 
greatest blessing a free people can have. The rights of the Habeas 
Corpus Act, under it, are inalienable and indestructible. Their 
suspension, by whomsoever ordered, undermined and destroyed the 
whole scheme of government It was not a mere political offence, 
but a fatal blow at the system, which alone was the object of 
preservation and the source of authority. There was no extrava- 
gance in the speech of Mr. Burke, as will be seen by an examina- 
tion of the duties of the judiciary. 

It is the province of the legislature to enact laws for the pun- 
ishment of crime ; but crime exists alone by the decision of the 
courts. The entire innocence of parties charged with offence, is 
presumed until they are convicted by the tribunals of justice. 
Hence the classification of offenders, as suspected and convicted 
persons. This distinction is clearly recognized in the laws of the 
States, and in the Constitution and laws of the Union. While no 
limitation is put upon the judges, in dealing with convicts, simply 
because they are outlaws, they are charged with the greatest cir- 
cumspection, and bound to the severest restraints, touching the 
treatment of persons suspected of crime. 

The reason of this is too obvious to justify comment. It is the 
most vital feature of a government of laws. There must be certain 
written evidence of guilt submitted to a peace officer before suspi- 
cion can legally attach to the offender. He cannot be held as a 
suspected person on any other condition. If he has violated the 
law, let the proof of the facts be laid before the judges of the law. 
It is just as reasonable to expect the judiciary to be proficient in 
the military service as to suppose that soldiers are qualified to 
discharge the duties of the legal profession. 

The Federal Constitution provides, what was supposed, at the 
time, to be the amplest precautionary restrictions, upon any and 
all persons having the right of arrest and imprisonment, against 
the abuse of such right and its corresponding injury. It declares, 
for instance, that " no warrant shall issue, but upon probable cause, 
supported by oath or affirmation ; " and " no person shall be held 



THE JUDICIARY. 55 

in answer for a capital or other infamous crime, unless on a pre- 
sentment or indictment of a grand jury ; " and " no person shall be 
deprived of life, liberty, or property, without due process of law ; " 
and " excessive bail sha'l not be required." 

These provisions apply exclusively to persons suspected of crime, 
and, in no case, to persons convicted of crime. There is nothing in 
them but the exercise of a wise and humane precaution against 
the abuse of power, by magistrates or others in authority. 

The direct office of the writ of habeas corpus is to recover the 
freedom of a citizen wrongfully taken away. . 

This law was enacted in aid of the provisions of the Constitu- 
tion quoted, and exclusively for the benefit of suspected persons. 
It recognizes the possibility of illegal imprisonment, in spite of the 
protective features of tbe organic law, to which we have referred, 
and provides for a rehearing of the case. 

There is nothing new in all these ordinances and regulations. 
They are a part, and a necessary part, of the machinery of all free 
governments. They are tbe very features of such a system which 
distinguish it from absolutism. They take away, not only all 
right to exercise individual will and judgment, but every semblance 
of authority to do so. They make the law supreme, by prescribing 
certain forms of proceeding ; and then, conceding the possibility of 
its evasion, they provide the means of recovering the freedom of a 
citizen thus illegally deprived of his liberty. 

All these safeguards against oppression are of no possible ac- 
count without an appropriate agency in the government to enforce 
them. A right, without a corresponding remedy, in the event of 
its violation, is a mere word of promise to the ear. The Federal 
Constitution is not only a chart, pointing out political shoals and 
treacherous currents, but a complete system of political navigation. 
It is a state, fixing with almost mathematical precision, the rights 
of persons and property, and on this basis giving power to enact 
and enforce laws. It was intended that these rights should be 
maintained precisely as they are placed in the compact. For this 
distinct and avowed purpose, among others, the judiciary was 
organized. Its constitution and powers are explicit. It is made a 
coordinate department of the government, its jurisdiction extending 



56 FREE GOVERNMENT. 

over all federal grants of which it is the only judge. With no 
authority to enact laws, it is its duty to determine the legality and 
constitutionality of those enacted by Congress. 2 

If we have fairly stated the office of the judiciary, it is hardly 
necessary to add that its suppression is fatal to the Union. It 
leaves a quivering, lifeless body to testify that the heart has been 
torn from it by the ruthless hand of ambition. 

It is certainly a wonuerful turn of the wheel of fortune, which 
imposes upon the American people an occasion for the discussion 
and maintenance of rights of persons and property, which are not 
only inherent in every freeman, but which are acknowledged in 
every line of their Constitution and laws. Nothing but the most 
astounding events of the day could have provoked this extraordi- 
nary condition of things. "We cannot believe, as thousands of the 
best informed unquestionably do, that a disposition anywhere pre- 
vails to overthrow our free system of laws. That we have com- 
mitted great mistakes in managing public affairs ; that we have 
shamefully violated almost every principle of constitutional govern- 
ment ; that we have conceded too much power to the Executive, 
where power is never legally exercised; that we have, in short, 
trusted most to that which, in the nature of things, should be 
trusted least, cannot be questioned. The plea on which these 
things have been done, too, is scarcely less criminal and treasonable, 
than the acts and omissions of which we complain. A large portion 
of the people proclaimed that the civil commotions of the state 
made it necessary practically to abandon the government of the 
Constitution in favor of the existing Administration. This mon- 
strous heresy has borne its legitimate fruit. We have a despotism 
without a dynasty. 

With no partiality for dynastic government, and no belief in 
the possibility of its maintenance, in the present temper of the 
American people, it is certainly much to be preferred to the reck- 
less system now in force at Washington. 

The President of the United States, by a strict construction of 
the Constitution, is endowed with no creative powers whatever. 
He is called the Executive, and required to fill certain offices, by 
the advice and consent of the Senate. As the political head of the 



THE JUDICIAHY. 57 

nation, it is his duty to conduct all foreign relations and generally 
to see to it that the laws shall be faithfully executed. He is not 
intrusted with the power, by virtue of his own action, to execute 
a single law of Congress governing the ordinary affairs of the people. 

It is the province of Congress to create all local executive offices 
necessary to carry into effect the laws of the Union. The President 
may appoint incumbents, by the consent of the Senate. He is a 
sort of commander to give orders to engineers, whose duty it is to 
execute the laws. In the event of failure, his power is exhausted 
by removing the delinquent, who is then turned over to the judi- 
ciary, where justice is administered and the rights and dignities of 
the state vindicated. There is not an element of constitutional 
government in the executive department. Compare this theory 
of the Union with its present administration, and let us see what 
we have done. 

Without the dignity which commands respect, the stability 
which assures order, or the magnanimity which often springs from 
the exercise of supreme power, we have a weak, vacillating political 
hybrid, so vulgar and offensive as to be no longer endurable even 
to its own parasites. It is the revel of the midnight robber in the 
house of the peaceful but despoiled citizen. It is that prodigal use 
of power, which in itself establishes its abuse. 

The governments of the States and the Union are not a mere 
arbitrary arrangement of covenants and obligations. They were 
founded on great moral rights and principles, every one of which 
would be binding, without a single section of law authorizing their 
enforcement. 

It would, for instance, be wrong and sinful to take life, liberty, 
or property without resorting, in every case, to recognized legal 
tribunals ; so of trials and punishments, without an impartial 
jury ; so of arrests of persons, without written proof of guilt ; so 
of forfeitures of property for treason or other felony. It would be 
wrong and sinful, in the event of arrest, to deny the right of a 
rehearing. 

Any departure from these settled principles, aside from the guilt 
involved in the deliberate violation of the Federal Constitution, is a 
great moral crime. The rights assailed are inherent and indestruc- 
3* 



58 FREE GOVERNMENT. 

tible, except by violence. The President, in no event, can have 
jurisdiction over them. They are matters which, in their very 
nature, come within the exclusive government of the judiciary. 
The latter is far more an executive department, so far as the 
enforcement of laws is concerned, than that of the President ; 
because it is charged with the special duty of enforcing laws, and 
endowed with absolute power to determine their binding force and 
constitutionality. For illustration, the Constitution declares that 
" treason shall consist only in levying war against them (see Sec. 
5), or in adhering to their enemies, giving them aid and comfort ; n 
and that " no attainder of treason shall work corruption of blood or 
forfeiture, except during the life of the person attainted." Convic- 
tions for treason and forfeiture of property on any other ground 
than this are void. It is the exclusive office of the judiciary to 
declare them so, and to hold to legal account those who act in 
violation of this fundamental law of the Union. 

But it is urged, we repeat, that pressing exigencies of public 
affairs demand the exercise of unrestricted power by the chief of 
the state ; and justify a disregard of acknowledged principles and 
obligations of law. This is the philosophy of despotism. 

Wherever it prevails, we apprehend, however, it will be found 
that extra-constitutional measures have not only preceded such 
exigencies, but caused them — that civil commotions have been 
fomented for the sole purpose of justifying such measures. Upon 
this point we need refer only to the conduct of the Federal G-ov- 
ernment, during the existing war, in all the border Slave States ; 
to the policy adopted to degrade those States into the merest 
dependencies upon the public administration ; to the suppression of 
the judiciary in all the States, which might otherwise have vindi- 
cated the laws of the Union ; to the exercise of legislative powers 
by every local military commander; and finally, to the practical 
exercise of supreme and absolute power, over the people, by the 
President of the United States. 

These examples of usurpation not only prove the wickedness of 
the pretence that extra-constitutional measures were demanded to 
meet unlooked-for and overwhelming difficulties; but they show 
conclusively, in the sequence of events, that such difficulties were 



THE JUDICIARY. 59 

created for the very purpose of justifying the assumption of abso- 
lute power. They indicate the process by which the free system 
of laws, under which the American people have lived and prospered 
for more than two centuries, has been swept away, almost unnoticed, 
within the few months of our criminal civil war. 

It must be confessed, in reviewing this degrading picture of 
public affairs, that there has been no midnight intrigue and de- 
ception in the work. This is the President's view of his powers : "As 
commander-in-chief of the army and navy in time of ivar } I have the 
right to take any measure which may best subdue the enemy." 

It is equally candid and explicit. If trial by jury, though an 
explicit constitutional right, should interfere with the efficiency of 
the army, he may suspend it. If the judicial arm of the States 
and of the Union, in his judgment, should render the military less 
effect ive, he may set it aside. If the seizure of private property for 
public uses without compensation, the arrest and imprisonment of 
citizens without any process of law, the suppression of the press, of 
religious freedom, free speech, and the confiscation of estates 3 ' 4 by 
military commissions, provost marshals and their county deputies, 
should, in his judgment, be regarded as appropriate war measures, 
he would have the right to enforce them. 

Then comes, from the same exhaustless fountain of despotic 
power, the right of transportation on the part of the President by 
order of military commissions — the right to seize a citizen, try him 
by court martial, sentence him to imprisonment or death, and to 
commute his punishment by an arbitrary edict, commanding that 
he be sent beyond the jurisdiction of the United States. It will 
not do to pass this flagrant outrage upon the people and the Fed- 
eral Constitution by a reference to one or two prominent cases. It 
is the regular and every-day practice of the Administration in quite 
all the border States ; and the power is exercised by local com- 
manders and provost marshals, without any supervisory control by 
the war department. Blackstone, speaking of this gross violation 
of the plainest rights of the people and of the highest dignities of 
the state, in the same act, says : 

" A natural and regular consequence of personal liberty is, that 
every Englishman may claim a right to abide in his own country so 



60 FREE GOVESmiEKT. 

long as he pleases ; and not to be driven from it, unless by the sen- 
tence of the law. The king, indeed, by his royal prerogative, 
may issue out his writ ne exeat regum, and prohibit any of his 
subjects from going into foreign parts without license. This may 
be necessary for the public service and safeguard of the common- 
wealth. But no power on earth, except the authority of Parliament 
[which is the same as that of the States and the people in thi3 
country], can send any subject of England out of the land against 
his will — no, not even a criminal. For exile and transportation are 
punishments unknown to the common law; and wherever the latter 
is now inflicted, it is either by the choice of the criminal himself to 
escape a capital punishment, or else by the express direction of 
some modern act of Parliament. To this purpose the great charter 
declares that no freeman shall be banished unless by the judgment 
of his peers or by the law of the land. And by the Habeas Corpus 
Act (that second Magna Charta and stable bulwark of liberties) it is 
enacted that no subject of this realm, who is an inhabitant of Eng- 
land, Wales, or Berwick, shall be sent prisoner into Scotland, Ire- 
land, Jersey, G-uernsey, or places beyond the sea (where they cannot 
have the full benefit and protection of the common law), but that 
all such imprisonments shall be illegal, and that the person who 
shall dare to commit another contrary to the law, shall le disabled from 
hearing any office, shall incur the penalty of a premunire, and le incapa- 
ble of receiving the Icing's pardon ; and the party suffering shall also 
have his private action against the person committing, and all his 
aiders, advisers, and abettors, and shall recover treble costs, besides 
his damages, which no jury shall assess at less than five hundred 
pounds." 5 - 6 

So far is this exemption of the subject from exile carried, in 
England, that the Government has no power to force one of its 
people to discharge diplomatic or other duties abroad, except per- 
sons in the naval and military service, because such a power might 
be construed into a right of actual transportation. 

It must be conceded, if the President has a right to take any 
measure he may deem proper, in time of war, in order to subdue 
the enemy, it extends to transportation as well as absolute domestic 
rule. 



THE JUDICIARY. 61 

That other Governments, including England, with two or three 
Continental exceptions, have abolished martial law, is no argument 
against its legal existence here. We must go to our own records to 
prove it to be one of the institutions of our society. If we cannot 
find its authorization there, it is clearly a usurpation. The Presi- 
dent says he is authorized to enforce its powers in time of war. Its 
origin is, then, war. It had been abolished in England long before 
the Revolution. It had of course been abolished in this country at 
the same time. It made no part of the institutions of the States when 
they adopted the Constitution. Even military law, except strictly 
in the military service, and confined exclusively to the preservation 
of discipline, was entirely unknown in both countries. This prin- 
ciple is illustrated in a case which originated at Fort Niagara, in the 
State of New Fork. A soldier committed an offence within the ju- 
risdiction of the fort, and while strictly in the military service. He 
was indicted by the civil authorities. It was claimed that it was an 
offence cognizable only by military tribunals. The court held that 
Fort Niagara, though a post occupied by the troops of the United 
States, had never been conveyed to the latter so as to exclude the 
jurisdiction of the State — that the United States could acquire ju- 
risdiction within the limits of a State only by positive cession. It 
was argued in the case, that Fort Niagara was held by the British 
authorities at the close of the war, and surrendered to the United 
States; and that the State, therefore, never had acquired jurisdic- 
tion of its grounds. Against this plausible reasoning the court op- 
posed the great doctrine of State sovereignty and independence. 

We allude to this event to show how the authority of the 
United States was regarded at the time, rather than to illustrate 
the powers and duties of the Union or the States " in cases of re- 
bellion." If the former can gain jurisdiction within the territorial 
limits of the latter only by cession, it determines, clearly enough, at 
least, the identity of the States as a governing power. Chief-Jus- 
tice Taney says : " Unquestionably a State may use its military 
power to put down an armed insurrection too strong to be controlled 
by the civil authority." So, unquestionably, a State, finding its 
civil and military authority insufficient to put down armed insur- 
rection or rebellion, may call to its aid the military arm of the 



62 FREE GOVERNMENT. 

Union. Such a call is its cession of jurisdiction to the latter within 
the limits of the State. The preservation of the civil authority of 
the State and the political authority of the Union is the end to be 
attained. 

How, then, is it, that the President may, under such circum- 
stances, take any measure which he may think will best put down 
rebellion ? Is he clothed with power not only to put down rebel- 
lion, but to suspend the civil institutions of the State, which he was 
called upon to sustain and uphold ? Does rebellion in one or more 
States, at the option of the Administration, transform the Union into 
an army and navy? Certainly so, if he may declare martial law 
and exercise its powers ; for martial law, as he has enforced it, is a 
complete supersedeas of all civil authority. But he is not content 
with martial law. Hume, speaking of this species of government, 
says: 

" The Star Chamber and High Commission and court martial, 
though arbitrary jurisdictions, yet had some pretence of trial, at 
least of a sentence ; but there was a grievous punishment very fa- 
miliarly inflicted in that age (Elizabeth), without any other than 
the warrant of a secretary of state or of the privy council, and 
that was imprisonment in any jail, and during any time, that the 
ministers should think proper. In suspicious times all the jails were 
full of prisoners of state, and these unhappy victims of public jealousy 
were sometimes thrown into dungeons and loaded with irons, and 
treated in the most cruel manner, without being able to obtain any 
remedy from law. This practice was an indirect way of inflicting 
torture." 

This step, beyond the jurisdiction and forms of martial law, has 
been taken, by the existing Administration, even so accurately as 
to make the historian's description of the practice of the English 
queen's government an exact account of the present Government of 
the United States. This little picture would be incomplete without 
another extract from the same learned author, touching the offices 
of one or two other institutions of Elizabeth's administration. He 
says : 

" One of the most ancient and most established instruments of 
power was the Star Chamber, which possessed an unlimited and 



THE JUDICIARY. 63 

discretionary authority of fining, imprisoning, and inflicting corporal 
punishment, and whose jurisdiction extended to all sorts of offences, 
contempts, and disorders, that lay not within the reach of the com- 
mon law. 

" There needed but this one court in any government, to put an 
end to all regular, legal, and exact plans of liberty. For who durst 
set himself in opposition to the crown and ministry, or aspire to 
the character of being a patron of freedom, while exposed to so 
arbitrary a jurisdiction? I much question whether any of the 
absolute monarchies in Europe contain, at present, so illegal and 
despotic a tribunal. . . . But martial law went beyond 
even these two courts, in a prompt and arbitrary and violent method 
of decision. Whenever there was any insurrection or public dis- 
order, the crown employed martial law, and it was during that time 
exercised not only over the soldiers, but over a whole people. Any 
one might be punished as a rebel or as an aider and abettor of 
rebellion, whom the provost martial or the lieutenant of a county 
or their deputies pleased to suspect." 

It must be remembered that these things occurred in England 
before martial law had been abolished, through the Petition of 
Right, which declares that " no man shall be prejudged of life or 
limb against the forms of the Great Charter," " that no man 
ought to be adjudged to death, but by the laws established by this 
realm, either by the custom of the realm, or by act of Parlia- 
ment, and that the commissions for proceeding by martial law 
should be revoked and annulled, lest by color of them any of his 
majesty's subjects be destroyed or put to death contrary to the laws 
and franchise of the land;" and long before the feeble colonies of 
this country had become objects of serious political interest. So 
that so far as the American people are concerned, they are indebted 
to Mr. Lincoln's Cabinet for their first practical lessons in this 
species of arbitrary government. Military law, as it is understood 
and enforced in England, would answer none of the ends sought to 
be accomplished; because that would leave the judiciary perfectly 
free to exercise absolute control over every pretended offence, com- 
mitted outside of the military service. There is no possible way 
open to the latter, under the British system, by which, in any con- 



64 FREE GOVERNMENT. 

tingency, the military can acquire jurisdiction over civil offences. 
It is this feature of the system, which more than anything else 
marks the transition from feudal or arbitrary rule to the present 
government of laws. The Star Chamber, High Commission, and 
court martial are fair expressions of the old law of England — the 
old covenant which has been superseded by the Christian politics 
of the present day. 

But it is maintained, with some plausibility, that it may not 
always best subserve the interest of the state, faithfully to execute 
its laws ; that this species of political heresy may be extended to 
the enforcement of arbitrary orders, even in direct opposition or 
contravention of its organic laws. Without admitting the propriety 
or justice of this terrible doctrine, its enforcement surely should 
be limited, if it is ever recognized, in such manner as never, in the 
slightest degree, to impair the integrity of the political system. Those 
who claim it as necessary, in order to preserve the life of the state, 
assert of course, that its institutions are defective — that they are 
deficient, at the very time when they ought to be sufficient. In the 
case of the United States, in the present rebellion, the Administra- 
tion have assumed not only extra-constitutional powers, but have 
set aside every constitutional guarantee of the liberty of the people. 
If they were authorized by overwhelming circumstances to take 
measures of an arbitrary nature, they must be limited to the first 
meeting of Congress, and, then, in no case, so as to impair the rights 
of a single citizen of the republic. The Government could be 
preserved only by protecting the rights of every man in the coun- 
try. That was its only great office. Their preservation was the only 
end in view. We cared not to conquer an enemy, but to make a 
friend. If we lose free government, it is a poor consolation to re- 
flect that we have won a battle. We can triumph only by con- 
vincing the world that we are capable of maintaining a free system 
of laws; and this we can never do except by subordinating the 
military, in war and in peace, to the civil power. It is the civil 
power that makes war against the South. It is the civil power 
which is struggling for existence and maintenance. It employs the 
army, and must ever command the army. This command, too, must 
be absolute. It is the law of the state, and there is no other law. 



THE JUDICIARY. 65 

Battles lost, in the present fearful struggle, have not been our 
greatest misfortunes. When we surrendered an independent judici- 
ary, and admitted the governing power of circumstances over the 
most venerable and freest system of laws in existence, we did more 
to degrade the people of the United States before the world, than 
could have been done by the loss of a thousand battles. We under- 
took to trade off the fame and success of a great nation for the 
transient and criminal honors of martial glory. We preferred the 
Xorman law of conquest and its feudal government, to the Saxon 
law of liberty, equality, and justice. We would have the dominion 
of the sword, with all its blood and waste. It was our right. The 
majority of the people said so. Majority is power. We had the 
power. Minorities must come to us for terms of reconciliation and 
peace. There is no magnanimity in politics — certainly none iu war ! 
It is a trial of strength, not an issue of fact. We are not debaters, 
but fighters. We have no civil institutions to save, but an enemy 
to punish ! 

We have referred to the conduct of the present Administration, 
we repeat again, with no intention of discussing its measures, but 
solely for the purpose of illustrating the principles of free govern- 
ment. There is not a question but that the State and Federal sys- 
tems were as perfect as it is possible for human intellect and patri- 
otism to make. If we have failed to maintain them, it is our fault, 
not theirs. In the judgment of many, the Union of the States was 
in great danger of failure through its elective corruptions. 
Public demoralization was almost universal. The confidence of 
the people in the integrity of their agents was greatly impaired. 
These evils, we believe, have led to the present unfortunate war 
between the States of the North and the South. It is a war 
against free government, if not the Union, by both belligerents. 
War between the States is disunion. It is much to be doubted if 
the separation could have been effected by any other process ; as 
it is certain that reconciliation is impossible through its agency. 
There must be reconciliation, or there can be no union. Success- 
ful war, even to subjugation, is separation with a terrible vengeance. 
It will not only destroy the principle of union, but the power of 
maintaining free government in the victorious States. 



i 



66 FREE GOVERNMENT. 

What we want, in any event, is free government. With that, 
we cannot fail. It is that we have had. It gave us greater 
prosperity, more happiness and less misery, than any other people 
ever had enjoyed. It was, too, the freest system ; assured a nearer 
approach to equality, a more general distribution of labor and 
capital ; it had more inherent elements of strength, political and 
geographical, more positive power for good, and a higher and nobler 
mission, than any other. It recognized what we call the institution 
of slavery — an apparent incongruity, we admit, of which we shall 
speak in another place ; but it was so constituted, that no citizen 
or State or party could have an anti-slavery mission, for the simple 
reason, that no citizen or State or party could right fully alter or 
modify one single law of another State, or one single provision of 
the compact of Union. It was understood that a violation of this 
principle would cause a sort of leak in the vessel of state, capable 
of wasting all that was valuable within. This is no new idea, on 
the subject of legal government ; but it is peculiarly applicable to 
our compound system, because the Union is a government, not of 
persons, but of States. 

It is this feature of the system which makes it necessary to 
recognize two legal parties — the people of the States, on the one 
hand, and federal representatives or agents, on the other — both being 
amenable to the law. It would indeed be a strange anomaly in a 
free government, if the people should be held to account, and not 
the agent or representative. The scheme was based on the 
idea that both might offend, and that both should be held 
responsible to the law. It is too common for the former to 
regard themselves as bound to submit to the dictation of the 
latter — to confound power with right — to admit, in all cases, the 
duty of obedience to whatever is exacted, on the part of political 
representatives. This is not only a great practical error, but one 
which, if carried out, can hardly fail to overthrow the best popular 
government which it is in the power of wisdom and patriotism to 
establish. 

It destroys, at once, the equilibrium of the system, by taking 
away its representative character, and removing from it the prin- 



THE JUDICIARY. 67 

ciple of accountability, without which it is not easy to see how a 
government of laws is to be maintained. 

Every citizen is clothed with legal authority to make resistance 
to such laws or ordinances as he may deem to be unconstitutional 
and therefore void. The judicial department was created expressly 
to enable him to appeal from the law-making and the executive 
power. It is the ouly check he is able to put upon Congress and 
the President, when his rights are invaded or his liberty taken away 
by unauthorized legislation or executive acts. The judiciary, 
in such cases, is not only the state, but the only possible means of 
avoiding either tame submission to arbitrary laws, on the one 
hand, or open resistance, on the other. 

On this subject, more than any other, we have the most inter- 
esting and timely events of British history to aid us. The struggle 
for the free system of English laws, which commenced under the 
Saxons, and which can hardly be said to have ended till after the 
close of the Napoleonic wars, discloses/at every stage of its prog- 
ress, an inflexible purpose to maintain, at every cost and sacrifice, 
the complete independence of the judiciary. This has evidently 
been regarded, from the beginning, as the corner stone and founda- 
tion of the political edifice. It has been, indeed, a struggle 
between the crown and the courts — a struggle for dominion on the 
one side, and for the right of impartial and independent judgment 
on the other. 

In the days of feudal government, it will be remembered, to the 
date of Magma Charta, the divine right of the king to reign, and 
passive obedience, were almost universally recognized. The exec- 
utive government had all the advantages of prescription and 
established political habits. Those who have studied the practical 
events of history, will understand the magnitude and strength of 
those powers of state. The assailants of the crown came to their 
work with ideas alone. It was ideas that made war upon the 
whole scheme of royal prerogatives. It was a war of reason, of 
philosophy, of rational liberty, against effete, decrepit forms, 
against blind, stupid convictions, and Asiatic habits and customs. 
It was this war which gave England the purest and ablest litera- 
ture, the highest judiciary, and the greatest statesmen, philos- 



68 FKEE GOVERNMENT. 

ophers and historians. It made it apparent to all the world, that 
no mere despotism, however protected by bayonets, can maintain 
itself against the forces of reason and the searching power of truth. 

It is a singular feature of American and English history, that 
while the people of this country, since the establishment of the 
G-overnment of the Union, have manifested a tendency at least to 
increase the powers of their chief magistrate, and to sustain and 
justify the exercise of almost every act of doubtful constitutional 
authority ; the people of England have struggled through centu- 
ries to strip their king of quite all authority, to increase the 
powers of their legislature, and to make their judiciary an inde- 
pendent tribunal having jurisdiction over both. 

This anomaly is the more remarkable, because the people of 
the States, especially during the last thirty years, have continued 
to withdraw authority from their governors; insomuch, that in 
many cases, they have left little more than a name to distinguish 
the office. 

But there is a lesson of profound interest to the American 
people and to the friends of free government everywhere in these 
events of history. They disclose the workings of two governments, 
both based upon principles of popular liberty, both successful, 
beyond all precedent, in whatever marks the prosperity of the 
people, in education, industry, enterprise, the distribution of labor, 
the accumulation of wealth, both starting substantially upon the 
same mission, but suddenly, as if controlled by some supernatural 
power, thrown as widely from parallel lines of administration as 
those which mark the governments of the Asiatic and European 
races. The point of separation is exactly where we abandoned the 
judiciary. 

The exercise of unconstitutional powers by the executive and 
legislative departments was a mere political offence, so long as the 
judiciary remained in freedom ; because the right and the agencies 
of punishment still existed. So long there was the means to hold 
official delinquents to account. Their enforcement might, indeed, 
have been difficult, and in many cases impossible. The law was 
violated, but not set aside. The machinery of government was 
perfect, though the engineer had neglected his duties. 



THE JUDICIARY. 09 

Impeachment, it must be remembered, is not the only process 
of punishment for official delinquents. That process is one pre- 
scribed in certain cases in order to establish the right of their 
removal from place. Violations of the rights of persons carry 
with them direct responsibility to injured parties. These parties 
may resort to the tribunals of justice. When the latter are 
stricken down, their remedy is gone, and, with it, all accountability 
and legal responsibility of official trespassers upon the rights of the 
people. The overthrow of the judiciary is always the first step of 
those who aspire to supreme control. 



Is O TBS. 

1. The responsibility of all federal agents to injured parties is affirmed in the 
following decision of the Supreme Court : " These orders given by the Executive 
under the construction of the act of Congress made by the department to which 
its execution was assigned, enjoin the seizure of American vessels sailing from 
a French port. Is the officer who obeys them liable for damages sustained by 
this misconstruction of the act, or will his orders excuse him ? If his instruc- 
tions afford him no protection, then the laws are legally awarded against him ; if 
they excuse an act not otherwise excusable, it would then be necessary to in- 
quire whether this is a case in which the probable cause which existed to induce a 
suspicion that the vessel was American would excuse the captor from damages 
when the vessel appeared, in fact, to be neutral. 

" I confess, the first bias of my mind was very strong in favor of the opinion 
that though the instructions of the Executive could not give a right, they might 
yet excuse from damages. I was much inclined to think that a distinction ought 
to be taken between acts of civil and those of military officers ; and between 
proceedings within the body of the country and those on the high seas. That 
implicit obedience which military men usually pay to the orders of their supe- 
riors, which, indeed, is indispensably necessary to every military system, ap- 
peared to me strongly to imply the principle that those orders, if not to perform 
a prohibited act, ought to justify the person whose general duty it is to obey 
them, and who is placed by the laws of his country in a situation which in gen- 
eral requires that he should obey them. I was strongly inclined to think that 
where, in consequence of orders from the legitimate authority, a vessel is seized 
with pure intention, the claim of the injured party for damages would be against 
the Government from which the orders proceeded, and would be a proper subject 
for negotiation. But I have been convinced that I was mistaken, and I have 



70 FREE GOVERNMENT. 

receded from this first opinion. I acquiesce in that of my brethren, which is, 
that the instruction cannot change the nature of the transaction, or legalize an 
act which, without those instructions, would have been a plain trespass." 

2. Chief-Justice Marshall defines with wonderful accuracy the character of 
the government and the great offices of the judiciary in the following lucid ex- 
position : 

"This, then, is a plain case for a mandamus, either to deliver the commis- 
sion, or a copy of it from the record ; and it only remains to be inquired, 

"Whether it can issue from this court. The act to establish the judicial 
courts of the United States authorizes the Supreme Court ' to issue writs of 
mandamus, in cases warranted by the principles and usages of law, to any courts 
appointed, or persons holding office, under the authority of the United States. ' 

" The Secretary of State, being a person holding an office under the au- 
thority of the United States, is precisely within the letter of the description, and 
if this court is not authorized to issue a writ of mandamus to such an officer, it 
must be because the law is unconstitutional, and therefore absolutely incapable 
of conferring the authority and assigning the duties which its words purport to 
confer and assign. 

" The Constitution vests the whole judicial power of the United States in 
one Supreme Court, and such inferior courts as Congress shall, from time to 
time, ordain and establish. This power is expressly extended to all cases aris- 
ing under the laws of the United States ; and, consequently, in some form, may 
be exercised over the present case ; because the right claimed is given by a law 
of the United States. 

" In the distribution of this power it is declared that ' the Supreme Court 
shall have original jurisdiction in all cases affecting ambassadors, other public 
ministers and consuls, and those in which a State shall be a party. In all other 
cases the Supreme Court shall have appellate jurisdiction.' 

" It has been insisted, at the bar, that, as the original grant of jurisdiction 
to the supreme and inferior courts is general, and the clause assigning original 
jurisdiction to the Supreme Court contains no negative or restrictive words ; the 
power remains to the legislature to assign original jurisdiction to that court in 
other cases than those specified in the article which has been recited ; provided 
those cases belong to the judicial power of the United States. 

" If it had been intended to leave it in the discretion of the legislature to ap- 
portion the judicial power between the supreme and inferior courts according to 
the will of that body, it would certainly have been useless to have defined the 
judicial power, and the tribunals in which it should be vested. The subsequent 
part of the section is mere surplusage, is entirely without meaning, if such is to 
be the construction. If Congress remains at liberty to give this court appellate 
jurisdiction, where the Constitution has declared their jurisdiction shall be origi- 
nal; and original jurisdiction where the Constitution has declared it shall be 



THE JUDICIARY. "1 

appellate ; the distribution of jurisdiction, made in the Constitution, is form 
without substance. 

" Affirmative words are often, in their operation, negative of other objects 
than those affirmed ; and in this case a negative or exclusive sense must be 
given to them, or they have no operation at all. 

" It cannot be presumed that any clause in the Constitution is intended to 
be without effect ; and, therefore, such a construction is inadmissible, unless the 
words require it. 

" If the solicitude of the convention, respecting our peace with foreign 
powers, induced a provision that the Supreme Court should take original juris- 
diction in cases which might be supposed to affect them ; yet the clause would 
have proceeded no farther than to provide for such cases, if no farther restric- 
tion on the powers of Congress had been intended. That they should have ap- 
pellate jurisdiction in all other cases, with such exceptions as Congress might 
make, is no restriction, unless the words be deemed exclusive of original 
jurisdiction. 

" When an instrument organizing fundamentally a judicial system, divides it 
into one supreme and so many inferior courts as the legislature may ordain and 
establish ; then enumerates its powers, and proceeds so far to distribute them as 
to define the jurisdiction of the Supreme Court by declaring the cases in which 
it shall take original jurisdiction, and that in others it shall take appellate juris- 
diction ; the plain import of the words seems to be, that in one class of cases- its 
jurisdiction is original, and not appellate ; in the other it is appellate, and not 
original. If any other construction would render the clause inoperative, that is 
an additional reason for rejecting such other construction, and for adhering to 
their obvious meaning. 

"To enable this court then to issue a mandamus, it must be shown to be an 
exercise of appellate jurisdiction, or to be necessary to enable them to exercise 
appellate jurisdiction. 

" It has been stated, at the bar, that the appellate jurisdiction may be exer- 
cised in a variety of forms, and that if it be the will of the legislature that a man- 
damus should be used for that purpose, that will must be obeyed. This is true, 
yet the jurisdiction must be appellate, not original. 

" It is the essential criterion of appellate jurisdiction that it revives and cor- 
rects the proceedings in a cause already instituted, and does not create that 
cause. Although, therefore, a mandamus may be directed to courts, yet to issue 
such a writ to an officer for the delivery of a paper is in effect the same as to 
sustain an original action for that paper, and, therefore, seems not to belong to 
appellate, but to original jurisdiction. Neither is it necessary in such a case as 
this to enable the court to exercise its appellate jurisdiction. 

" The authority, therefore, given to the Supreme Court, by the act establish- 
ing the judicial courts of the United States, to issue writs of mandamus to pub- 
lic officers, appears not to be warranted by the Constitution ; and it becomes 
necessary to inquire whether a jurisdiction so conferred can be exercised. 



72 FREE GOVERNMENT. 

" The question whether an act, repugnant to the Constitution, can become the 
law of the land, is a question deeply interesting to the United States ; but, hap- 
pily, not of an intricacy proportioned to its interest. It seems only necessary 
to recognize certain principles, supposed to have been long and well established, 
to decide it. 

" That the people have an original right to establish for their future govern- 
ment such principles as, in their opinion, shall most conduce to their own hap- 
piness, is the basis on which the whole American fabric has been erected. The 
exercise of this original right is a very great exertion ; nor can it, nor ought it 
to be frequently repeated. The principles, therefore, so established, are deemed 
fundamental. And as the authority from which they proceeded is supreme, 
and can seldom act, they are designed to be permanent. 

" The original and supreme will organizes the Government, and assigns to 
different departments their respective powers. It may be either stopped here, 
or establish certain limits not to be transcended by those departments. 

" The Government of the United States is of the latter description. The 
powers of the legislature are defined and limited ; and that those limits may not 
be mistaken or forgotten, the Constitution is written. To what purpose are 
powers limited, and to what purpose is that limitation committed to writing, if 
these limits may at any time be passed by those intended to be restrained ? The 
distinction between a government with limited and unlimited powers is abolished 
if those limits do not confine the persons on whom they are imposed, and if acts 
prohibited and acts allowed are of equal obligation. It is a proposition too 
plain to be contested, that the Constitution controls any legislative act repug- 
nant to it ; or, the legislature may alter the Constitution by an ordinary act. 

"Between these alternatives there is no middle ground. The Constitution is 
either a superior, paramount law, unchangeable by ordinary means, or it is on a 
level with ordinary legislative acts, and, like other acts, is alterable when the 
legislature shall please to alter it. 

" If the former paii; of the alternative be true, then a legislative act contrary to 
the Constitution is not law ; if the latter part be true, then written constitutions 
are absurd attempts, on the part of the people, to limit a power in its own 
nature illimitable. 

" Certainly all those who have framed written constitutions contemplate them 
as forming the fundamental and paramount law of the nation, and consequently 
the theory of every such government must be, that an act of the legislature re- 
pugnant to the Constitution is void. 

" This theory is essentially attached to a written constitution, and is consequent- 
ly to be considered, by this court, as one of the fundamental principles of our 
society. It is not therefore to be lost sight of in the further consideration of 
this subject. 

" If an act of the legislature repugnant to the Constitution is void, does it, 
notwithstanding its invalidity, bind the courts, and oblige them to give it effect ? 
Or, in other words, though it be not law, does it constitute a rule as operative as 



THE JUDICIARY. 73 

if it was a law ? This would be to overthrow in fact what was established in 
theory, and would seem, at first view, an absurdity too gross to be insisted on. 
It shall, however, receive a more attentive consideration. 

" It is emphatically the province and duty of the judicial department to say 
what the law is. Those who apply the rule to particular cases, must of neces- 
sity expound and interpret that rule. If two laws conflict with each other, the 
courts must decide on the operation of each. 

"So if a law be in opposition to the Constitution, if both the law and the Con- 
stitution apply to a particular case, so that the court must either decide that case 
conformably to the law, disregarding the Constitution, or conformably to the 
Constitution, disregarding the law, the court must determine which of these 
conflicting rules governs the case. This is of the very essence of judicial duty. 

"If then the courts are to regard the Constitution, — and the Constitution is 
superior to any ordinary act of the legislature, — the Constitution, and not such 
ordinary act, must govern the case to which they both apply. Those then who 
controvert the principle that the Constitution is to be considered in court as a 
paramount law, are reduced to the necessity of maintaining that courts must close 
their eyes on the Constitution, and see only the law. 

"This doctrine would subvert the very foundation of all written constitutions. 
It would declare that an act which, according to the principles and theory of our 
government, is entirely void, is yet, in practice, completely obligatory. It would 
declare that if the legislature shall do what is expressly forbidden, such act, not- 
withstanding the express prohibition, is in reality effectual. It would be giving 
to the legislature a practical and real omnipotence, with the same breath which 
professes to restrict their powers within narrow limits. It is prescribing limits, 
and declaring that those limits may be passed at pleasure. 

"That it thus reduces to nothing what we have deemed the greatest improve- 
ment on political institutions — a written constitution — would of itself be suf- 
ficient, in America, where written constitutions have been viewed with so much 
reverence, for rejecting the construction. But the peculiar expressions of the 
Constitution of the United States furnish additional arguments in favor of its re- 
jection. 

" The judicial power of the United States is extended to all cases arising under 
the Constitution. 

" Could it be the intention of those who gave this power to say that, in using 
it, the Constitution should not be looked into ? That a case arising under the 
Constitution should be decided without examining the instrument under which 
it arises? 

" This is too extravagant to be maintained. In some cases then the Constitu- 
tion must be looked into by the judges. And if they can open it at all, what 
part of it are they forbidden to read or to obey ? 

"There are many other parts of the Constitution which serve to illustrate this 
subject. 

"It is declared that 'no tax or duty shall be laid on articles exported from 
4 



74 FREE GOVERNMENT. 

any State.' Suppose a duty on the export of cotton, of tobacco, or of flour, and 
a suit instituted to recover it ; ought judgment to be rendered in such a case ? 
ought the judges to close their eyes on the Constitution and only seethe law? 

" The Constitution declares that 'no bill of attainder or ex post facto law shall 
be passed.' 

" If, however, such a bill should be passed, and a person should be prosecuted 
under it, must the court condemn to death those victims whom the Constitution" 
endeavors to preserve ? 

" ' No person,' says the Constitution, ' shall be convicted of treason unless 
on the testimony of two witnesses to the same overt act, or on confession in open 
court.' 

" Here the language of the Constitution is addressed especially to the courts. 
It prescribes, directly for them, a rule of evidence not to be departed from. If 
the legislature should change that rule, and declare one witness, or a confession 
out of court sufficient for conviction, must the constitutional principle yield to 
the legislative act? 

"From these, and many other selections which might be made, it is apparent 
that the framers of the Constitution contemplated that instrument as a rule for 
the government of courts as well as the legislature. 

" Why otherwise does it direct the judges to take an oath to support it ? This 
oath certainly applies, in an especial manner, to their conduct in their official 
character. How immoral to impose it on them if they were to be used as the 
instruments, and the knowing instruments, for violating what they swear to sup- 
port ! 

"The oath of office too, imposed by the legislature, is completely demonstra- 
tive of the legislative opinion on this subject. It is in these words : " I do 
solemnly swear that I will administer justice without respect to persons, and will 
do equal right to the poor and to the rich ; and that I will faithfully and impar- 
tially discharge all the duties incumbent on me as , according to the 

best of my abilities and understanding, agreeably to the Constitution and laws of 
the United States.' 

" Why does a judge swear to discharge his duties agreeably to the Constitution 
of the United States, if that Constitution forms no rule for his government — if it 
is closed upon him, and cannot be inspected by him ? 

" If such be the real state of things, it is worse than solemn mockery. To pre- 
scribe, or to take this oath, becomes equally a crime. 

" It is also not entirely unworthy of observation, that in declaring what shall 
be the supreme law of the land, the Constitution itself is first mentioned ; and not 
the laws of the United States generally, but those only which shall be made in 
pursuance of the Constitution, have that rank. 

" Thus the particular phraseology of the Constitution of the United States con- 
firms and strengthens the principle supposed to be essential to all written consti- 
tutions — that a law repugnant to the Constitution is void, and that courts, as well 
as other departments, are bound by that instrument." 



THE JUDICIARY. *75 

3. Speaking of the attack upon security in France under the monarchy, Ben- 
thain says, under the head of General Confiscations : " I refer to this head those 
vexations exercised upon a sect, upon a party, upon a class of men, under the 
vague pretence of some political offence, in such manner that the imposition of 
the confiscation is pretended to be employed as a punishment, when in truth the 
crime is only a pretence for the imposition of the confiscation. History presents 
many examples of such robberies. The Jews have often been the object of them ; 
they were too rich not to be always culpable. The financiers, the farmers of the 
revenue, for the same reason, were subjected to what were called burning cham- 
bers. When the succession to the throne was unsettled, everybody, at the death 
of the sovereign, might become culpable, and the spoils of the vanquished formed 
a treasury of reward in the hands of the successor. In a republic torn by fac- 
tions, one half of the nation became rebels in the eyes of the other half. When 
the system of confiscations was admitted, the parties, as was the case at Rome, 
alternately devoured each other. 

" The crimes of the powerful, and especially the crimes of the popular party 
in democracies, have always found apologists. ' The greater part of these large 
fortunes,' it has been said, 'have been founded in injustice, and that was only 
restored to the public which had been stolen from the public.' To reason in this 
manner is to open an unlimited career to tyranny ; it is to allow it to presume the 
crime, instead of proving it. Ought so grave a punishment as confiscation to be 
inflicted by wholesale, without examination, without detail, without proof? A 
procedure which would be deemed atrocious if it were employed against a single 
person ; does it become lawful when employed against an entire class of citizens ? 
Can the evil which is done be disregarded because there is a multitude of suf- 
ferers whose cries are confounded together in their common shipwreck ? " 

4. Commenting upon the fallacies in the Declaration of Rights by the French 
National Assembly in 1791, Jeremy Bentham remarks on its declaration that 
" All men are born and remain free, and equal in respect of rights : " 

"All men are bom free? All men remain free? No, not a single man; 
not a single man that ever was, or is, or will be. All men, on the contrary, are 
born in subjection, and the most absolute subjection — the subjection of a helpless 
child to the parents on whom he depends every moment for his existence. In 
this subjection every man is born — in this subjection he continues for years — for 
a great number of years — and the existence of the individual and of the species 
depends upon his so doing. 

" What is the state of things to which the supposed existence of these sup- 
posed rights is meant to bear reference? — a state of things prior to the exis- 
tence of government, or a state of things subsequent to the existence of 
government ? If to a state prior to the existence of government, what would 
the existence of such rights as these be to the purpose, even if it were true, 
in any country where there is such a thing as government ? If to a state 
of things subsequent to the formation of government — if in a country where 



76 FREE GOVERNMENT. 

there is a government, in what single instance — in the instance of what single 
government is it true ? Setting aside the case of parent and child, let any man 
name that single government under which any such equality is recognized. 

" All men born free ? Absurd and miserable nonsense ! When the great 
complaint — a complaint made perhaps by the very same people at the same 
time, is — that so many men are born slaves. Oh ! but when we acknowledge 
them to be born slaves, we refer to the laws in being, which laws being void, 
as being contrary to those laws of nature which are the efficient causes of those 
rights of man that we are declaring, the men in question are free in one sense, 
though slaves in another — slaves and free at the same time — free in respect of 
the laws of nature — slaves in respect of the pretended human laws, which, though 
called laws, are no laws at all, as being contrary to the laws of nature. For such 
is the difference — the great and perpetual difference betwixt the good subject, 
the rational censor of the laws, and the anarchist — between the moderate man 
and the man of violence. The rational censor, acknowledging the existence of 
the law he disapproves, proposes the repeal of it ; the anarchist, setting up his 
will and fancy for a law before which all mankind are called upon to bow down 
at the first word — the anarchist, trampling on all truth and decency, denies the 
validity of the law in question — denies the existence of it in the character of 
law, and calls upon all mankind to rise up in a mass .and resist the execution 
of it. 

"All men are born equal in rights. The rights of the heir of the most in- 
digent equal to the rights of the heir of the most wealthy ? In what case is this 
true? 

" All men (i. e., all human creatures of both sexes) remain equal in rights. 
The apprentice then is equal in rights to his master ; he has as much liberty 
with relation to the master as the master has with relation to him ; he has as 
much right to command and to punish him ; he is as much owner and master of 
the master's house as the master himself. The case is the same as between 
ward and guardian. So again as between wife and husband. The madman has 
as good a right to confine anybody else as anybody else has to confine him. 
The idiot has as much right to govern everybody as anybody can have to govern 
him. The physician and the nurse, when called in by the next friend of a sick 
man seized with a delirium, have no more right to prevent his throwing himself 
out of the window, than he has to throw them out of it. All this is plainly and 
incontestably included in this article of the Declaration of Rights ; in the very 
words of it, and in the meaning — if it have any meaning. Was this the meaning 
of the authors of it? — or did they mean to admit this explanation as to some of 
the instances, and to explain the article away as to the rest ? Not being idiots, 
nor lunatics, nor under a delirium, they would explain it away with regard to 
the madman, and the man under the delirium. Considering that a child may 
become an orphan as soon as it has seen the light, and that in that case, if not 
subject to government, it must perish, they would explain it away, I think, and 
contradict themselves, in the case of the guardian and ward. In the case of 



THE JUDICIARY. 77 

master and apprentice I would not take upon me to decide ; it may have been 
their meaning to proscribe that relation altogether — at least this may have been 
the case, as soon as the repugnancy between that institution and this oracle was 
pointed out ; for the professed object and destination of it is to be the standard 
of truth and falsehood, of right or wrong, in everything that relates to govern- 
ment. But to this standard, and to this article of it, the subjection of the ap- 
prentice to the master is flatly and diametrically repugnant. If it do not pro- 
scribe and exclude this inequality, it proscribes none ; if it do not do this mis- 
chief, it does nothing. 

" So again, in the case of husband and wife. Amongst the other abuses 
which the oracle was meant to put an end to, may, for aught I can pretend to say, 
have been the institution of marriage. For what is the subjection of a small and 
limited number of years in comparison of the subjection of a whole life ? Yet 
without subjection and inequality no such institution can by any possibility take 
place ; for of two contradictory wills, both cannot take effect at the same time. 

" The same doubts apply to the case of master and hired servant. Better a 
man should starve than hire himself; better half the species starve than hire 
itself out to service. For, where is the compatibility between liberty and ser- 
vitude ? How can liberty and servitude subsist in the same person ? What 
good citizen is there that would hesitate to die for liberty ? — and, as to those 
who are not good citizens, what matters it whether they live or starve ? Be- 
sides that, every man who lives under this constitution being equal in rights, 
equal in all sorts of rights, is equal in respect to rights of property. No man, 
therefore, can be in any danger of starving — no man can have so much as that 
motive, weak and inadequate as it is, for hiring himself out to service." 

5. " For the destruction of everything by which the constitution of this country 
has ever been distinguished to its advantage, no additional measures need be em- 
ployed ; let but the principles already avowed continue to be avowed — let but 
the course of action dictated by those principles be persevered in — the consum- 
mation is effected. As for the Habeas Corpus Act, better that the statute book 
were rid of it. Standing or lying as it does, up one day, down another, it serves 
but to swell the list of sham securities with which, to keep up the delusion, the 
pages of our law books are defiled. When no man has need of it, then it is that it 
stands ; comes a time when it might be of use, and then it is suspended." — Bentham. 

6. The letter of Napoleon to M. Fouche, his Minister : 

" M. Fouche : I read in Tlie Journal de V Empire of the 9th instant that at the 
end of a comedy, by Colin d'Harleville, this note occurs : 

" ' Seen and permitted the printing and sale, pursuant to the decision of his 
Excellency, the Minister of General Police Senator. Dated 9th of this month. 
By order of his Excellency, P. Lagarde, 

' Chief of the Division of the Liberty of the Press.' 

11 1 am astonished at these new forms, which the law only could authorize. 



78 EKEE GOYEENMENT. 

If it were proper to establish a censorship, it could not be established without 
my permission. When my will is that the censorship shall not exist, I have a 
right to be surprised at seeing in my empire forms which may be good at Vienna 
and Berlin. If these be the result of an old usage, send me a report on it. I have 
a long time calculated the means of reestablishing the social edifice, and now I am 
obliged to watch over the maintenance of public liberty. I do not mean that the 
French should become serfs. In France, all that is not prohibited is permitted ; 
and nothing can be prohibited except by the laws and the tribunals, or by meas- 
ures of high police, where public morals and public order are concerned. I re- 
peat, I will not have a censorship ; because every bookseller answers for the 
work he puts into circulation ; because I have no wish to be responsible for the 
nonsense that may be printed ; and because I will not allow a mere clerk to 
tyrannize over mind and mutilate genius. Napoleon," 



CHAPTEE IT. 

THE HABEAS CORPUS ACT. 

ITS LEGAL OFFICE NECESSARY TO FREE GOVERNMENT — HOW SUSPENDED THE 

RIGHT OF THE PRESIDENT AND CONGRESS DENIED ORIGINATED WITH US — 

SUBORDINATION OF THE MILITARY POWER CONSTITUTION SUSPENDED BY 

OVERTHROW OF JUDICIARY MILITARY GOVERNMENT A USURPATION — HABITS 

AND TRADITIONS A PART OF OUR SYSTEM DEMORALIZING EFFECTS OF MIL- 
ITARY RULE UPON THE CIVIL POWER. 

The Act of Habeas Corpus simply provides that all persons 
deprived of their liberty, shall have the right to demand a review 
of the proceedings of magistrates or others leading thereto. This 
right is utterly valueless to guilty parties, and was given solely in 
the interest of accused or suspected persons, in order that the 
innocent may be protected against the tyranny or usurpation of 
those in authority. The Constitution of the United States makes 
it a part of our political system, not by express provision, but by 
the restriction it imposes upon the authorities, in reference to its 
suspension. It existed in all the States of the original confedera- 
tion, and, as was evidently supposed, transmitted to the govern- 
ment of the United States, as a settled element in a free system 
of laws. 

It is one of those provisions which can be removed only by 
showing that freedom is an evil, and absolutism a benefit. It is 
incapable of doing the least damage to a free state, of preventing 
the execution of the least rightful authority, of shielding offenders, 
or in any way defeating the ends of justice. 

It constitutes a sort of reserve force against those intrusted 
with the right of arrest, with power to keep them within the scope 
of the laws, and with no other authority whatever. It is purely 
protective in all its features ; to the state, because it is the com- 
pass of its administration ; to the citizen, because, while it never 



80 FREE GOVERNMENT. 

shields an offender, it never permits innocent parties to be confound- 
ed with the guilty. 

Among the many perplexing anomalies which have arisen in 
the course of our political career, the disclosure of hostility to the 
free exercise of the rights of the Habeas Corpus Act, is the most 
difficult of solution. With no party or citizen who dares to oppose 
it, we find it suspended, not, according to the Constitution, by the 
supervening power of the army, in cases and places of rebellion, 
but by the proclamation of the President of the United States, over 
the entire Union, 

The right to suspend the writ is given in these words (1st Art., 
9th sec, Con. U. S.) : 

" The privilege of the writ of habeas corpus shall not be 
suspended, unless when in cases of rebellion or invasion the public 
safety may require it." 

It will be observed that the authority of suspension is here 
declared, while nothing is said of the manner or by whom it may 
be done. In the absence of all reflections upon the nature of the 
government, and of the State systems, existing at the time of the adop- 
tion of the Constitution, the inference would be fair, that the Presi- 
dent of the United States might legally take jurisdiction of the 
case and suspend the writ. But it is clearly seen that no such power 
was ever intended to be lodged in his hands, simply because, by 
another provision of the Constitution, he is made commander-in-chief 
of the army. It is not possible that the head of the army was 
clothed with affirmative power to subordinate the least civil 
authority to his command. 

In this case, too, we have the origin of the writ, as it were, in 
our own family. It grew out of a controversy involving the alleged 
right of the Crown of England to imprison, at will, its subjects. 
This right the people not only denied, but affirmed that they would 
be held alone in answer to the laws. In order to effect this great 
end of free government, they enacted that all freemen should have 
the right to be heard before the courts, whenever their liberties 
had been taken away without due warrant of law. This was no 
more than a simple declaration that they would be governed by 
laws, and not by the arbitrary will of an executive magistrate. 



THE HABEAS CORPUS ACT. 81 

All this, we repeat, is a part of the record of our own political 
household. It was the work, in a legal sense, of our own people. 
It is our own history. Its honor, and its example, are ours. We 
cannot go behind it, without an open abandonment of free govern- 
ment. 

It is clear, then, that the President was clothed with no au- 
thority to suspend the writ ; and such, we apprehend, is the almost 
unanimous opinion of the country. 

The right of the legislative department to do in this case what 
principle, policy, and history concur in denying to the executive, is 
another and far more important question. It is more important, 
simply because that department has assumed to exercise the power 
of suspension. It has ordained a precedent, and although it may 
not be received as good law that congressional legislation is proof 
of constitutional right, yet it is undeniably true that there are 
many persons — far too many — who are satisfied with this kind of 
reasoning. 

We well understand, that a denial of the right of Congress or 
the President, to suspend the privilege of the writ imposes upon 
the person who urges it, the duty of showing by what authority and 
action it may be suspended. 

It is impossible to overlook, in discussing the subject, not only 
the character of the Union, but of the States which created it. 
Nowhere else in the world was there a system of laws more abso- 
lutely free, or a people more resolute or vigilant in their mainte- 
nance. What was prominent over every other matter of government, 
was their resolution to maintain, at all times and in all exigencies, the 
complete subordination of the military to the civil authority. This 
was not a mere theory or fancy of the day, but a great law of pub- 
lic opinion, of universal acceptation and government. 

It is hardly possible that such a people, not only jealous of 
military rule, but expressing fears of the domineering civil power 
of the Union, should so construct the latter as directly or indirectly 
to be able to violate this fundamental idea of freedom. If Congress 
may suspend the writ or authorize its suspension, though it places 
before the President one impediment to the exercise of irrespon- 
sible power, it does not close the door against it, as was the evident 
4* 



82' FREE GOVERNMENT. 

purpose of the States in creating the Union. It makes it little 
better, that Congress instead of the President has authority to 
break down the barrier between the civil and the military power. 
That barrier was universally regarded as necessary to the preservation 
of the former and the control of the latter. The governments of the 
States and the Union are purely civil institutions. In no event 
was it intended that they should be anything else. Military 
authority, as an element of government, was never contemplated. 
The army was recognized as sheriffs, marshals, and other minis- 
terial officers were recognized, to perform ministerial duties, not 
legislative or judicial. There was no original authority placed in 
its hands. Its duty was to obey, not make laws. It possessed 
neither peace nor war powers, of a civil or political nature. 

How are we then justified in the conclusion that either Congress 
or the President is authorized to suspend the writ ? Such suspen- 
sion, if legal, inaugurates the military head of the nation, and of 
necessity makes it supreme over all civil institutions; for it is the 
right of every people to have government. 

If military rule was not contemplated by the States, if its sub- 
ordination to the civil authority was universally demanded, is it not 
morally impossible that the framers of the Constitution should have 
conferred upon Congress the least authority to emasculate the 
judiciary ? 

What need was there for inserting in that compact its stringent 
prohibitions against the arbitrary exercise of authority over persons 
and property, if, by a sweeping power, they intended to permit their 
practical suspension by Congress on precisely the occasions when 
power is most likely to be abused ? 

Were civil institutions of such doubtful utility and efficiency, 
that they could be trusted only in peace ? 

From what events in our own or the history of England, was it 
determined that military government may be inaugurated over the 
whole country " in cases of rebellion or invasion" in any particular 
part of it ? 

Was rebellion, in one State, regarded as sufficient to deprive the 
people of all the others of their civil institutions ? 

It is obvious to the least-informed person that no authority is 



THE HABEAS CORPUS ACT. 83 

conferred upon Congress to suspend the writ. Yet it may be sus- 
pended, and in such manner and place as to effect the end desired, 
the invigoration of the civil authorities, without inflicting a fatal 
wound upon the body politic. The Constitution, we repeat, is 
silent touching the manner and the authority to suspend the writ. 
Granting the right, we are restricted in its enforcement, at least to 
the limits of its previous exercise by the governments of the States. 
In other words, the status of the military had been fixed, by an 
irrepealable law of public sentiment in this country and England, 
and we have no right, on the authority of the vague grant in ques- 
tion, to interfere with that status. We have no right to infer, 
simply because the right of suspension is conceded, that it may be 
carried out so as to confer authority upon the military to assume 
superior control over the laws of the United States, and the States. 
If those laws, in a particular place or locality, are menaced or over- 
thrown, by rebellion or invasion, the best thing the civil authorities 
can do, is to invoke the aid of the military ; for it is then that the 
public safety is endangered, and it is then, and then only, that the 
latter is warranted to supervene, and assume control, to the end that 
the civil administration may go on with its peaceful work. Mean- 
while, in every other part of the Union the example of absolute 
civil government, within the scope of the laws, is held up to the 
rebels or insurgents of the disaffected district or section. By this 
simple theory of the case, the great end sought to be attained, the 
maintenance of the Union, is achieved, without the least infringe- 
ment of the system. We can better afford to lose the General 
Government, than the general character of the people as the pecu- 
liar guardians of liberty. It will be much easier to reconstruct the 
former than to recover the latter when lost. 

Rebellion consists of combinations to resist or overthrow the 
laws of the state. When it becomes so formidable as to endanger the 
public safety — which means, we repeat, the inability of the civil 
power to enforce the laws within the circle of the disaffection it 
is the right of the military to suspend the writ. There would 
seem to be no right to further invade the ordinary functions of the 
judiciary, because that department is coequal with the legislative 
and the executive, and there is no semblance of authority to inter- 



84 FREE GOVERNMENT. 

fere with its duties beyond that of the suspension of this particular 
warrant. General Jackson at New Orleans disregarded the com- 
mand of the judiciary, " in time of war ; " and was subsequently fined 
for contempt. He paid the amount cheerfully, aud with it, that 
deference to the supremacy of the civil power, which he never 
failed to assert over the military. The fine was subsequently re- 
funded to him, by direction of Congress, which was a testimonial 
to his integrity, without any confession of his right to disregard 
the orders of the court. He might well have maintained, had 
that been the question, that by virtue of the grant now under 
discussion, his suspension of the writ was so far legal as to exempt 
him from liability to injured persons on account of the act. But 
even then, his exemption could only be established by showing that 
the public safety demanded it. 

The language of the Constitution partakes far more of the 
character of a guarantee of the rights of the Habeas Corpus Act, 
than of a delegation of power to suspend it. It reads : " The 
privilege of the writ shall not be suspended," except in certain 
cases of u rebellion or invasion." The means of judging when the 
public safety may require it, is necessarily confined to the au- 
thorities of the locality. This was peculiarly so when the Consti- 
tution was adopted. It exhibits, we imagine, the intention of its 
framers. Had it been their purpose to confer the right upon Con- 
gress, they would surely have said so. If it was their purpose 
to provide for local contingencies, they would most naturally have 
entrusted the right with persons of the place, who could best 
determine when the public safety is endangered and therefore the 
suspension required. 

Nothing is better established than that the governments of the 
States and the Union are purely civil governments. Military 
authority is not only no part of their polities, but is excluded 
from their administration, by positive law and long and well settled 
national habits and traditions. This is confirmed by the whole 
analogy of the governments of the States and the Constitution of 
the United States. As Hume says of England. " A free monarchy, 
in which every individual is a slave, is a glaring contradiction." 
There is, we maintain, in these habits and traditions, a moral power 



THE HABEAS CORPUS ACT. 85 

scarcely less cogent and binding than the obligations of the Con- 
stitution and laws. They constitute the very basis of government. 
It was the violation, on the part of England, of these traditional 
riehts, far more than the actual sacrifice of material interests, that 
led to the war of the Revolution. In the great act which declared our 
separation, we proclaimed to the world that the king had " affected 
to render the military independent of and superior to the civil 
power ; " that he had deprived us of " the benefits of trial by 
jury ; " that be had created new offences ; that he had quartered 
soldiers upon the people. 

We allude to these records of history to show the force of 
certain ideas or convictions, which, we maintain, constitute a part 
of our free system of laws. 

The authority claimed and exercised by ,Congress to suspend 
the functions of the judiciary, or to authorize the President to do 
so, is not only inconsistent then with the political governments of 
the States and the Union, but in plain opposition to the national 
habits and traditions of the people. Nothing short of absolute 
necessity, involving, through its agency, the preservation of the 
Union, could have justified the lodgment of such a power with the 
army ; and we are bound to show, before we acknowledge its exist- 
ence there, not only the great peril of the state, but that its exer- 
cise is necessary to its preservation. There is a total absence of 
words conveying authority to any particular person or department.. 
This leaves the clause to be construed by the application of general 
principles, having in view, at all times, the character of the States 
and the Union, and the habits and traditions of the people. Nor 
must it be forgotten, that general rebellion, embracing all the States, 
is quite impossible. There will always be what we call loyal 
States ; for without loyal States there can be no pretence either 
for rebellion or Union. The proposition to cripple the civil 
administration of the faithful, in order to conquer and subdue 
the unfaithful, is too monstrous for consideration. If punish- 
ment is to be inflicted, let it fall upon the transgressor. It is 
enough for the loyal people that they employ themselves and 
their means to put down the disloyal. They are limited in this 
work to the enforcement of the laws. They are willing to sacrifice 



86 FEEE GOYEENMENT. 

their blood and treasure to this end, but not their civil institu- 
tions, their freedom, and their manhood. 

It is certainly more in consonance with our system to admit 
the right of Congress to enact the suspension, than to lodge it in 
the hands of the Executive. A.t least there is one objection less to 
its exercise by the legislature than by the President. But it is 
unnecessary and suicidal to confer it upon either. That it has 
been received and enforced by Congress, as a legislative grant, in 
the most arbitrary and unjustifiable manner, is the very best proof 
that it should not have been placed in the hands of that body. 
The precedent goes for nothing, beyond the solemn warning it con- 
veys to the people of the danger, disorder, and demoralization, which 
must ever follow the surrender of the civil to the military power. 
It is another impressive illustration of the principle we have 
advanced, that too much power, in a free government, is a source of 
weakness, rather than strength. It is undeniably true, in the present 
instance, that the Union sentiment of the people has become fear- 
fully weakened by this and kindred measures, which have gone far 
to prove that free governments are made for sunshine and not for 
the storm. Of course, such things indicate, if they have any 
political significance at all, that the federal system was radically 
defective, that it needed aid, not of military force, not of patri- 
otism and determination on the part of the people to sustain it, 
but of measures, which it failed to authorize, or worse yet, which 
it positively prohibited. In this category we place the unwarranted 
suspension of the writ of habeas corpus, the suppression of trial 
by jury, of free speech and the press, and finally, the general in- 
auguration of martial law, all over the Union. 

If the right of suspension was conferred upon Congress or the 
President, the language used being general, in respect to the extent 
of its exercise, over all the territories of the Union, the power is 
equally so. There is not a word of limitation, of this nature, in it. 
" In cases of rebellion or invasion, when the public safety requires 
it," the suspension is authorized. This clearly contemplates cases 
of rebellion in certain localities, and the inference is fair, that it 
was intended to confine the act of suspension to the places or States 
where it might exist. It was very much the habit of the times 



THE HABEAS COEPTJS ACT. 81 

when the Constitution was adopted, to take a practical view of 
things. To authorize the suspension of the writ in New York, be- 
cause the people of Virginia had entered into rebellion against the 
authority of the former State through that of the Union, would be 
little less than absurd. It would certainly raise a reasonable pre- 
sumption that New York was a party to the rebellion, and so on 
through all the States. 

This view is completely sustained by the proceedings of the Con- 
stitutional Convention, touching this particular grant. 

The proposition to confer the power, in general and unqualified 
terms, upon Congress, was embraced in Mr. Pinckney's plan of a 
constitution, presented on the 20th of August, 1787. This par- 
ticular subject came up, for consideration, on the 28th of the 
same month, when Gouverneur Morris submitted a substitute for the 
proposition of Mr. Pinckney, in these words : 

" The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless ivhere in cases of rebellion or invasion the public 
safety may require it." 

There was no difference of opinion in the convention on the 
first part of this substitute, viz. : " The privilege of the writ 
of habeas corpus shall not be suspended," it was therefore 
adopted nem. con. The vote on the remaining portion of the 
substitute, to wit : " unless ivhere in cases of rebellion or invasion 
the public safety may require it," stood, seven States for it, and three 
against it. So the Morris substitute, entire, was adopted. 

This is the simple history of the adoption, by the convention, of 
the clause in question, and afterward, so far as we can find, no refer- 
ence is made to the subject. There was very decided opposition 
made to giving power in any contingency to suspend the writ. It 
was declared unnecessary, unsafe, and especially in the general and 
unlimited form proposed by Mr. Pinckney. It was distinctly and 
positively said, in behalf of the proposition to authorize the suspen- 
sion on some terms, that its general suspension would be an impos- 
sibility, for it would signify that all the States might be in rebellion 
at the same time, or that the civil establishment might be overthrown 
in all the States at the same time. Hence, in order to satisfy the 
opponents of the power, Mr. Gouverneur Morris framed his substi- 



88 FREE GOVERNMENT. 

tute in a negative form, authorizing the suspension only "where, in 
cases of rebellion or invasion, the public safety may require it." 
How, and when, this significant word, where, was lost, and " when " 
put in its place, we cannot discover from the record. The Madison 
Papers make no mention of the subject matter again after the 28th 
of August, up to the reference of all the adopted provisions to the 
committee on order and finish, from which the Constitution came 
back for signature. There was no consideration, by the convention, 
of this particular matter again. Whether the word " where," in 
Mr. Morris' substitute, was so written that the copyist made it 
"when," or whether the committee on form, without much reflection, 
substituted the latter for the former, we leave to the curious to 
determine. 

Meanwhile the original design of the convention of the States is 
made too clear to be disputed. ■ Mr. Pinckney's general legislative 
power of suspension was rejected ; three States opposed any restric- 
tion ; while seven States were willing to confer the power of suspen- 
sion, where there should be rebellion or invasion. This sim'ple history 
of the origin of the grant, indicates the spirit and purpose of the 
body which framed the Constitution. 

There is no light in which the subject can be seen, which gives 
the least color of authority to suspend the privilege of the writ, be- 
yond the district, State, or section, which may be invaded or in re- 
bellion. The design certainly was to uphold the Union and enforce 
its laws. To this end the employment of the military was author- 
ized. It is absurd to claim that the authority of the latter in such 
" cases" is not limited to those in rebellion or the public enemy, 
Not so, however, if the right to suspend the writ has been lodged 
with Congress or the President, because they are two chief depart- 
ments of the Federal Government, and the power being general in 
its language, they may command it over all the United States, at 
least so far as to interdict the Federal Judiciary. 

The Union was ordained by sovereign States, acting separately 
and remaining in the confederation with all their original powers of 
government, excepting those which they delegated. The delegated 
powers are almost exclusively of a political nature, such as foreign 
intercourse, commerce, and navigation, the regulation of the value, 



THE HABEAS CDRPUS ACT. 89 

of foreign coin, and so on through the whole range of the delegated 
interests. The Federal Judiciary was so constituted as to take 
cognizance of these things, and at the same time, to act in obedience 
to the civil institutions of the States — " to adopt and follow the de- 
cisions of the State courts," in the language of Chief- Justice Taney, 
M in all questions which concern merely the constitution and laws of 
the State/' When we reflect that titles to real estate and other kin- 
dred matters are almost exclusively determined by State laws, and 
that the jurisdiction of the courts of the latter is absolute over 
quite all the relations of the people, the reason of this obedience will 
be seen. 

In view of these things, how is it possible, in the absence of 
direct and positive authority, to that end, to sustain the conclusion, 
that the writ may be suspended over all the Union, including the 
Federal and State Judiciary, by the mere enactment of Congress, 
or the more summary process of Executive proclamation ? 

The least that can be said of such a proceeding, if the power is 
conceded, is, that Congress is clothed with authority, in fact, to 
change or overthrow the whole scheme of government. It is folly 
to contend that an elective republic can be maintained on any other 
basis than an untrammelled, independent judiciary. 

It is most unlikely that a people, unreasonably jealous of the 
aggregate civil powers of the Federal Union, would clothe any de- 
partment thereof with the right and the means of overthrowing the 
civil institutions of the States and transforming their Union into a 
military despotism. All this is possible by the exercise of such a 
power. The first step in the progress of the transformation, is the 
removal of a tribunal which has exclusive power to judge of the 
constitutionality of the acts of both Congress and the President. 

But it is answered, it is the suspension only of a single function 
of the courts, and that, in all other respects, they are as free to 
act, within the scope of the law, as before. 

If this special pleading has any force, it proves too much. If 
the courts are free to execute the laws, there ca,n be no justification 
for the suspension of the writ. If the civil government is ample, 
the intervention of the military is surely wanton. The writ of ha- 
beas corpus can do no injury to a free people, or a free state when 



90 FREE GOVERNMENT. 

its laws are not obstructed by civil disabilities. It was ordained 
in aid of the people, and expressly to prevent the violation of their 
rights of person, by the arbitrary acts of those in authority No 
honest man ever sought the suspension of this great remedy, when 
the courts were free to exercise their judicial functions. 

It is not, then, the mere suspension of the writ which is de- 
manded ; it is the practical overthrow of the judicial power of the 
state. So we find it. The President mads it partial at first ; and 
followed the act almost immediately by the declaration of martial 
law. Finding the two measures to work admirably in the interest 
of consolidation, they were again followed by another proclamation, 
suspending the writ in all the States and Territories of the Union. 
But it was not alone, we repeat, the writ of habeas corpus that was 
suspended ; all the powers of the judiciary, State and Federal, were 
either interdicted or placed under the actual government of military 
commanders. These events are too recent and well authenticated 
to be doubted or denied. We live to-day under the surveillance of 
marshals and provost marshals ; and are everywhere told, that the 
President was authorized, by virtue of power conferred upon him 
by Congress, drawn from an express constitutional grant, to do and 
direct these things ! 

Having shown, as we think, that neither Congress nor the Pres- 
ident has any legal right to suspend the writ, and that its suspension 
is only authorized, in any event, over certain localities where the 
overthrow of the civil authorities has been effected by " rebellion or 
invasion," and then only by the supervening power of the army, we 
now propose to discuss the legal limits of suspension, by whomso- 
ever declared. 

The subject comes before the country in the form of a paragraph 
taken from the Constitution of the United States. In another part 
of that instrument a judicial department is authorized. In order 
that we may be perfectly accurate, we repeat entire the second sec- 
tion of the third article, which covers all the grants of power made 
to the Federal Judiciary : 

" The judicial Power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority ; — to all 



/ 

/ 
/ 
/ 



THE HABEAS CORPUS ACT. 91 

cases affecting ambassadors, other public ministers, and consuls ; — to 
all cases of admiralty and maritime jurisdiction; — to controversies 
to which the United States shall be a party ; — to controversies be- 
tween two or more States ; — between a State and citizens of another 
State; — between citizens of different States; — between citizens of 
the same State, claiming lands under grants of different States, and 
between a State or the citizens thereof, and foreign states, citizens, 
or subjects." 

The jurisdiction of the United States is here expressly limited 
to specific relations, the first of which is by far the most important, 
embracing " all cases arising under the Constitution, the laws of the 
United States, and treaties made or which shall be made under 
their authority." It is obvious that this clause covers all the ex- 
pressly delegated powers, and such as may be necessary to carry 
them into effect, and nothing else. For illustration, all postal and 
revenue matters, currency, the regulation of commerce, and all other 
powers delegated to the Union, come within the jurisdiction of the 
federal courts. So of all controversies " between a State and citi- 
zens of another State," " between citizens of different States," and 
so on through the special cases laid down. 

On the other hand, the federal courts have no jurisdiction (with 
the single exception embraced in the section quoted), covering all 
the ordinary relations and interests of life. They are as clearly 
beyond their control in respect to everything of the kind, as of the 
courts of England or France. The Union is to them, touching 
such matters, a foreign government ; because the States not only 
retain original and exclusive jurisdiction over them, but maintain a 
complete system of laws, with ample executive and judicial powers 
for their enforcement. These laws, as we have shown, embrace 
quite all the interests of society. They are manifestly the rule, 
while the powers delegated to the Union constitute the obvious ex- 
ception. 

It seems incredible, with the chart of the latter before us, and 
the operation of all the machinery of the States by our own hands, 
under the direction of engineers of our own appointment, that we 
should be capable of running into controversy upon the subject, or 
commit or permit the least error, in a case so clear. 



92 FREE GOVERNMENT. 

It will be remembered, that in ordaining the Federal Judiciary 7 
it was made to cover all the delegated powers. It is the judicial 
machinery of a complete government. Its powers are coextensive 
with the powers of that government. They are limited ; because 
those of the United States are limited. Whatever the President 
may rightfully do, the judiciary may act upon. So of Congress. 
The opposite of this is equally true. Whatever the judiciary has 
no constitutional jurisdiction over, in respect to persons and prop- 
erty, the President and Congress are excluded from ; because the 
authority of the three coordinate departments of the government 
was delegated to them by the States, and the whole was organized 
into and constituted one system of laws, on the express condition, 
that " the powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively or to the people." This certainly fixes the unity of 
the three departments. With different duties and obligations, 
their boundaries are identical, the scope of their authority the 
game. 

How, then, is it within the constitutional power of any federal 
agency to suspend the privilege of the writ of habeas corpus, leyond 
the jurisdiction of the Federal Judiciary ? The habeas corpus act 
existed in all the States, when the Union was adopted ; is it com- 
petent for Congress to travel out of the federal beat and command 
its suspension by the State Courts, in respect to matters which the 
State not only never delegated to the United States, but expressly 
reserved to themselves or their people ? 

It makes nothing in favor of this pretension, that the suspen- 
sion is intrusted to Congress, because that body, like the judiciary, is 
limited to the delegated powers. It will not be urged, surely, that 
the restrictive words of the grant, viz., " The privilege of the writ 
shall not be suspended " except in certain cases, confers authority 
to suspend it over things not embraced in the Federal Union. 
The organic law reads, " The Congress shall have power " to do- 
certain enumerated things (the right of suspension not one of 
them), and it is otherwise provided, as we have seen, that nothing 
else shall be done. 

The legal inference to be drawn from this statement, is clearly 






THE HABEAS CORPUS ACT. 93 

against the right of that body to suspend the writ, on any terms, 
and absolutely conclusive against the power of suspension, beyond 
the legal jurisdiction of the Federal Judiciary, or what is the same 
thing, beyond the limits of the federal syscem. 

The latter would be rightly classed as a measure proposing an 
amendment to the Constitution, for it involves, in its enforcement, 
not only a modification of fundamental principles, but can hardly 
fail to change the very character of the government. 

The union of the civil and the military powers, limited ex- 
clusively to the federal system, under the control of the President 
or Congress, would be bad enough; but its extension so as to 
absorb State institutions, the concretion of all the parts of our 
complicated political machinery into one compact whole, is a 
proposition so monstrous, disloyal, and treasonable, that to name 
ought to be enough to defeat it. The existence of civil commotions 
should stimulate every true friend of civil liberty to struggle with 
all energy to preserve the integrity and uphold the authority of the 
Constitution and laws of the country. Instead of affording a just 
ground for relaxing our fidelity to the great principles of free 
government, they impose upon every honest man a necessity for 
increased vigilance in their strict maintenance. 

There are dangers enough to be apprehended from the workings 
of the civil administration, without needlessly adding to them 
those inherent in military rule. We have witnessed the revolu- 
tionary power of majorities; the tendency of one department to 
encroach upon the legal functions of another ; the enactment and 
enforcement of laws having no other foundation than the alleged 
necessities of the day ; the suppression of free speech, of the press, 
and the overthrow of personal rights — the exercise, indeed, of 
almost absolute government, by the civil authorities. Superadd 
to these political errors the despotic enforcement of martial law, 
and our fall will be complete. The recognition, to the least 
degree, of the latter, or even of military rule, is fatal to the in- 
tegrity of the former. It is that loss of virtue which justifies 
licentiousness and makes regeneration and atonement impossible. 
Governments can no more escape the effects of this species of 



94 FKEE G0VEK3TMENT. 

license than individuals ; while the difficulties of reformation are 
obviously greater. 

It may be stated as a never-failing principle, that the mainte- 
ance of a free system of laws is impossible, by any other than 
an exclusive civil administration. There can be no compromise 
between the two estates ; for the simple reason that their powers 
are unequal. Military government is absolute in its very nature. 
It has no deliberative features. It is a single person ; a law in 
itself, with all the powers necessary to its enforcement.' 

But it is urged, that a government of laws, in the sense here 
described, is also practically impossible; that every state must 
enter into the great family of nations, and adopt for its government 
international rules and regulations ; and that, in order to preserve 
the rights and dignities of a state, it is compelled to maintain an 
army and navy. The absence of these agencies, it is said, would 
certainly invite aggression and produce evils superior to any to be 
apprehended from the exercise of military power. 

If these considerations have any force at all, they go to the 
extent of proving that military law, in the present condition of the 
world, is a sort of necessity — that we cannot maintain government 
without its distinct recognition as a political element of the state. 
This results, not from the condition of public sentiment here, but 
from the fact that we are, as a nation, drawn into association with 
others, who are not as honest as they might be. It follows, of 
course, that the American people, by the force of circumstances,, 
cannot be permitted to maintain a governmant of their choice. 

It is true, that as a nation, we must take our place in the fami- 
ly of nations, and subscribe to the code of general laws adopted for 
the government of all ; that we must have an army and navy ; that 
we must be prepared to meet aggression and repel invasion. All 
this is suggested by wise precaution. But it does not follow, that 
it may not be done under the exclusive direction of the civil power. 
Such was the design of the Union. No other principle of govern- 
ment has ever been recognized in this country. It is this principle 
which has distinguished ours from the Continental systems. Its 
grand agency is the judiciary. The range of its duties are co- 
extensive with the jurisdiction of the state. 



THE HABEAS CORPUS ACT. 95 

There is, undoubtedly, great virtue iu the popular enthusiasm 
of the day, in behalf of the Government of the Union. Its preserva- 
tion, in all its integrity, is an object dear to every citizen. We 
want it all, just as it was ordained. We want it as a means to an 
end. Its restoration, simply because it was our government, under 
which we had been most prosperous and happy, is not enough. 
We want it, bcause it was a free government — an exclusive civil 
government — with vast powers for doing good, when honestly 
administered. We want it, because it was a standard political 
system, with vastly more capacity to benefit mankind than to 
assure peculiar advantages to our people. 

We have placed ourselves under some obligations to all the 
world. It has been our interest to invite emigration hither, 
because we possessed a great continent, a large portion of which was 
unproductive. Our labor was disproportioned to our territories. 

We called our country an asylum for the oppressed. We pro- 
claimed everywhere, that our civil institutions were as free a3 the 
air. We opened wide the doors to citizenship ; and millions entered, 
and millious more, yet unborn, we supposed, would come to join us 
in the great mission of free government. That mission became 
sacred, far beyond the range of present life. It was for the future. 
It can succeed only on the basis of the strict maintenance, at all 
times, of the supremacy of the civil over the military power. 

One of the most striking and fatal popular errors of the day, is 
that which justifies the exercise of extra-constitutional powers, on 
the alleged ground of necessity. This is a pervading and damaging 
political heresy. It is an impeachment of the whole scheme of 
government, a declaration of its incapacity to answer the simplest 
purposes of its creation. A nation of laws, so deficient in foresight 
as to render their abrogation a necessity, on the first trial of their 
strength and efficiency, is certainly not worth preserving. If the 
Union could be maintained only by the overthrow of civil liberty, we 
do not perceive the wisdom of the sacrifices we have made in its 
behalf. These sacrifices go for nothing, if not offered up on the 
shrine of free government. To admit the right of our political 
agents, in a period of trial, to substitute their laws for ours, their 
discretion, no matter with what motive, for the deliberate judgmeut 



96 FKEE GOVERSTMEISTT. 

of the States and the people, would be a confession not only that 
our institutions had entirely failed, but that we had authorized those 
agents to institute government for us. There is no way by which 
this conclusion can be avoided. And yet there are great numbers 
of the people who justify the almost absolute exercise of discre- 
tionary power on the part of the President and others under him — 
power not confined to military operations, but of a legislative and 
judicial character. Taxes have been levied and collected. Proper- 
ty has been confiscated. Persons have been arrested, tried, and 
convicted, or held in prison, at the mere will of provost marshals 
and military commissions. These things too are of daily occur- 
rence. They show how completely the civil administration has 
been subordinated to the military, in every part of the Union. 

It would be extraordinary virtue, if the civil power, in such a 
condition of things, should retain its wonted purity and integrity — 
if it should escape the evil influence of that general demoralization, 
which never fails to follow such exhibitions of public disorder and 
anarchy. The wonder is, with such fearful examples before us, in 
connection with the great disasters of the war, the derangement of 
business, the exhaustion of national credit, 2 and the almost universal 
loss of confidence in the general administration, that we are able to 
exhibit so much tenacity of purpose and real devotion to the free 
system of laws we have so recklessly abandoned. 



NOTES. 

1. " Such attention was paid to this charter by our generous ancestors, that 
they got the confirmation of it reiterated thirty several times, and even secured it 
by a rule which seems in the execution impracticable. They have established it as 
a maxim, that no statute, which shoidd be enacted in contradiction to any article of 
that charter, can have force or validity. But with regard to that important article 
which secures personal liberty, so far from attempting, at any time, any legal 
infringment of it, they have corroborated it by six statutes, and put it out of all 
doubt and controversy. If in practice it has often been violated, abuses can never 
come in place of rules ; nor can any rights or legal powers be derived from in- 
jury and injustice. But the subject's title to personal liberty not only is founded 
on ancient, and, therefore, the more sacred laws : it is confirmed by the whole 
analogy of the government and constitution. A free monarchy, in which 



THE HABEAS CORPUS ACT. 97 

every individual is a slave, is a glaring contradiction ; and it is requisite, when 
the laws assign privileges to the different orders of the state, that it likewise 
secure the independence of all the members. If any difference could be made 
in this particular, it were better to abandon even life or property to the arbitrary 
will of the prince, nor would such immediate danger ensue from that concession, 
to the laws and to the privileges of the people. To bereave of his life a man not 
condemned by any legal trial, is so egregious an exercise of tyranny, that it 
must at once shock the natural humanity of princes, and convey an alarm through 
the whole commonwealth. To confiscate a man's fortune, besides its being a 
most atrocious act of violence, exposes the monarch so much to the imputation 
of avarice and rapacity, that it will seldom be attempted in any civilized 
government. 

u But confinement, though a less striking, is no less severe a punishment ; 
nor is there any spirit so erect and independent as not to be broken by the 
long continuance of the silent and inglorious sufferings of a jail. The power 
of imprisonment, therefore, being the most natural and potent engine of arbi- 
trary government, it is absolutely necessary to remove it from a government 
which is free and legal." — Hume's History of England. 

" Ashby, the king's sergeant, having asserted, in a pleading before the peers, 
that the king must sometimes govern by acts of state as well as by law ; this 
position gave such offence that he was immediately committed to prison, and 
was not released but upon his recantation and submission." — Ibid,vol. vi. p. 250. 

2. " What is meant by the ' constitutional currency,' about which so much is 
Baid ? What species or forms of currency does the Constitution allow, and what 
does it forbid ? It is plain enough that this depends on what we understand by 
currency. Currency, in a large, and perhaps in a just sense, includes not only gold 
and silver and bank notes, but bills of exchange also. It may include all that 
adjusts exchanges and settles balances in the operations of trade and business. 
But if we understand by currency the legal money of the country, and that which 
constitutes a lawful tender for debts, and is the statute measure, then undoubt- 
edly, nothing is included but gold and silver. Most unquestionably there is no 
legal teuder, and there can be no legal tender, in this country, under the authority 
of this Government or any other, but gold and silver, either the coinage of our 
own mints, or foreign coins, at rates regulated by Congress. This is a constitu- 
tional principle, perfectly plain, and of the very highest importance. The States 
are expressly prohibited from making anything but gold and silver a tender in 
payment of debts ; and although no such express prohibition is applied to Con- 
gress, yet, as Congress has no power granted to it, in this respect, but to coin 
money and to regulate the value of foreign coins, it clearly has no power to substi- 
tute paper, or anything else, for coin, as a tender in payment of debts and in dis- 
charge of contracts. Congress has exercised this power fully in both its branches. 
It has coined money, and still coins it ; it has regulated the value of foreign 
5 



98 FREE GOVERNMENT. 

coins, and still regulates their value. The legal tender, therefore, the constitu- 
tional standard of value, is established, and cannot be overthrown. To over- 
throw it would shake the whole system The constitutional ten- 
der is a thing to be preserved, and it ought to be preserved sacredly, under all 
circumstances." — Webster. 



CHAPTEK Y. 

MAKTIAL LAW. 

THE GUARDIANS OF CIVIL LIBERTY SHOULD UNDERSTAND WHAT IS MARTIAL LAW 

ITS ORIGIN AND ORIGINAL POWERS IN ENGLAND THE EXTENSION OF THE CITIL 

ESTABLISHMENT — MARTIAL LAW CONFINED AFTER THE GREAT CHARTER EX- 
CLUSIVELY TO THE MILITARY SERVICE — ITS COMPLETE SUBORDINATION TO THE 

CIVIL POWER BY THE PETITION OF RIGHT — THE ENGLISH SYSTEM OURS 

MARTIAL LAW IN THE UNITED STATES — REVOLUTIONS CROMWELL — HIS MIL- 
ITARY GOVERNMENT THROUGH TWELVE MAJOR-GENERALS WHERE LAWS FAIL 

IT IS A DESPOTISM — EXPOSITION OF MARTIAL LAW BY THE SUPREME COURT OF 
THE UNITED STATES ITS EXPOSITION IN ENGLAND BY LORD LOUGHBOROUGH. 

A people who have undertaken to maintain free government, 
and have held themselves up before the world, in no very modest 
speech, as the peculiar guardians of civil liberty, ought to under- 
stand exactly what is martial law, military law, and civil authority. 
If we look back upon the career of the Anglo-Saxon race, these 
three widely different phases of government become as distinct as 
the reign of the hostile families who have been raised at times to 
the throne of England. They mark, indeed, three distinct stages 
of progress, from the Norman Conquest to the time of the execution 
of the Great Charter, as the first ; to the enactment of the Petition 
of Right, as the second; to the Bill of Rights and the final triumph 
of the people in the firm establishment of the Habeas Corpus Act, 
as the third. 

It is a curious and instructive fact that the progress of English 
liberty is exactly indicated by the progress of the civil over the 
military power. Starting under the Norman conquerors with an 
absolute and licentious military government, the utter overthrow 
of Saxon liberty, and the complete confiscation of estates, parcelled 
out to the followers of the chief, and again to sub-dependants, we 
pass on to the great conflict between the barons and the king, re- 

L.ufC. 



100 FREE GOVERNMENT. 

suiting in the conquest of Magna Charta, the reduction of the military 
and the extension of the civil power, and again, to that greater 
achievement of civil liberty, the Petition of Right, when, in point 
of fact, the military power ceased to be an element of the Constitu- 
tion of England. All this, we repeat, is simply a history of martial 
law, as it was understood and enforced from the Korman Conquest, 
up to about the time of the wresting of the Great Charter from 
King John ; of military law, its successor in government, as it was 
enforced before the Petition of Right and the Habeas Corpus 
enactment, to the final and complete triumph of the civil establish- 
ment. 

Martial law, as rudely exercised by the conquerors, was abso- 
lute military government, not limited in its jurisdiction to military 
persons, but extended to every citizen or subject, even to the right 
of compelling service to those intrusted with command. It would 
seem, from an examination of the structure of society at that period 
and what was actually done, that it was the policy of the conquerors 
of our honest Saxon ancestors, to confer supreme power upon the 
military, as the easiest and shortest process of overthrowing, not 
only their civil institutions, but the entire eradication of their social 
and political habits and convictions. There were none but martial 
honors to be won, and no submission, short of slavery, could be 
received. 

In the progress of events this early phase of martial law be- 
came modified, so as to confine its authority to military persons 
in all circumstances. Even their debts and obligations were 
subject to inquiry by military commissions. Every species of 
offence committed by any person in the army must be tried, not by 
a civil judicature, but by the judicature of the regiment or corps 
to which he might belong. It was yet made to extend to a great 
variety of cases not relating to the discipline of the army. Plots 
against the sovereign, intelligence furnished to the enemy, and 
numerous other kindred matters, were all considered as cases within 
the cognizance of military authority. 

This was its phase for many centuries in England, and although 
shorn, as was- intended, by the Great Charter, through the exten- 
sion of the civil establishment, of much of its offensive and dam- 



MARTIAL LAW. 101 

aging power, its exercise, far beyond what was necessary to preserve 
discipline and order in the military service, was continued till the 
time of Sir Edward Coke, when it received its final blow, from 
which it has never entirely recovered. 

It is a remarkable fact — at least very remarkable to' the Ameri- 
can people — that martial law, as enforced in England, after the 
treaty of Runnymede, was a weak, harmless power, when compared 
with the exercise of military authority in this country during the 
last three years. It was absolute over all persons in the army, and 
assumed that certain persons, not in the service, but acting against 
the service, were thereby brought within the jurisdiction and gov- 
ernment of martial law. There was no pretence of power to 
determine crimes against the state, such as treason or other felony. 
The right to sit in judgment upon the citizen, for any offence, 
opinion, or speech he might commit or utter, touching the character 
or conduct of the general administration, was never claimed. 

Those who have carefully studied the history of governments, 
where there have been two acknowledged forces in the state, the 
civil and the military, need not be told that the latter is constitu- 
tionally inclined to extend its powers, during war or civil commo- 
tions. This has been especially the case in England even, where 
there has ever been more distrust of military authority, and a more 
profound sense of the necessity of keeping it within the strict limits 
of the law, than in any other country. But with all the robust 
political health of Englishmen, and their long-established devotion 
to civil liberty, their career is full of instances, in which the military 
power has broken over the boundaries of legal authority, and tram- 
pled down, for the day, the civil institutions of the kingdom. 

It is thus seen how war may be as dangerous to a free state, on 
account of its inherent tendencies to weaken or overthrow the civil 
establishment, as hostile invasion by a powerful public enemy. In 
the long struggle of the British people for free institutions — a 
struggle, which, all the circumstances of the case considered, 
evinces more earnest, patient, and profound knowledge of mankind, 
than is elsewhere to be found in the history of the human family — 
there is not to be seen one event in time of peace, since the estab- 
lishment of the existing constitution, which has seriously threatened 



102 FREE GOVERNMENT. 

the legal authority of Parliament. It has been when the army 
was employed by the direction and for the civil establishment, that 
it has extended its powers beyond the authority conferred upon it by 
the latter. But in every such event there has been, on the part of 
the people, a prompt, earnest, and resolute rebuke administered to 
the offending power, and a reassertion of the supreme authority of 
the civil establishment. 

" The army being established," says an eminent English judge, 
" by the authority of the legislature, it is an indispensable requisite 
of that establishment, that there should be order and discipline kept 
up in it, and that the persons who compose the army, for all offen- 
ces in their military capacity, should be subject to trial by their offi- 
cers. That has induced the absolute necessity of a mutiny act 
accompanying the army." " It is one of the objects of that act to 
provide for the army, but there is a much greater cause for the 
existence of a mutiny act, and that is the preservation of the peace 
and safety of the kingdom ; for there is nothing so dangerous to the 
civil establishment of a state, as a licentious and undisciplined 
army." " The object of the mutiny act, therefore, is to create a 
court invested with authority to try those who are a part of the 
army, in all their different descriptions of officers and soldiers ; and 
the object of the trial is limited to breaches of military duty. Even 
by that extensive power granted by the legislature to his majesty, 
to make articles of war, those articles are to be for the better gov- 
ernment of his forces, and can extend no farther." 

These extracts exhibit the structure of the civil establishment 
in England, and show clearly that the military is held in complete 
subordination to it. The mutiny act confers jurisdiction to the 
army over offences committed by persons in a military capacity. 
Without such a delegation of power, we take it, the*army would 
have no authority, of any kind, to punish persons in its own 
service. Its power is limited by the act exclusively to such persons 
— is conferred by the state to that extent only. And then over all 
is constituted a court, having superior jurisdiction of all those who 
are a part of the army, in all their different descriptions of officers 
and soldiers. 

The important right to ordain articles of war, existing in the 



MARTIAL LAW. 103 

Crown of England, and delegated by the States to Congress here, 
can in no event be exercised, in either country, so as to confer 
jurisdiction upon the array, beyond what is necessary to pre- 
serve and maintain discipline. The law here is precisely what it 
is in England, with this exception : that there is no power in Con- 
gress, as there unquestionably is in Parliament, to extend the 
authority of the array beyond the limits set upon it by the existing 
British system. That system, in this respect, is ours. All our no- 
tions of civil liberty, and what is necessary to maintain it, we 
inherited from England. We started in our career of independent 
government on this distinct basis : that as long as the civil estab- 
lishment can be maintained, it must be absolute over the military. 
We went farther than this, and maintained that the latter should 
always be held as an agent of the former, subject to its orders at 
all times, and that every person in the army, who assumes to exer- 
cise original authority, is an offender against the laws, liable to 
punishment through the courts, and personally liable to every citi- 
zen who may be injured thereby. This doctrine has been repeat- 
edly affirmed in England. Extreme punishments have been en- 
forced against military commanders, in cases where there was some 
difficulty in ascertaining whether the original offence was strictly 
military in its nature. 

The most celebrated, perhaps, of this class of criminal trials, 
was that of Governor Wall, who, by commission of a court martial, 
caused a soldier to be flogged, so that he died. Twenty years after 
the commission of the offence, Wall was tried by the civil author- 
ities, convicted, and executed. The case turned upon a single point, 
whether the alleged offence of the soldier was strictly military in 
its nature. This havino; been determined in the negative, the 
original trial by court martial could not screen the unfortunate 
commander, because by that decision the military authority was 
left wholly without any jurisdiction of the soldier's offence. 

Lord Coke says : "If a lieutenant or any other that hath 
commission of martial law in time of peace, hang or otherwise 
execute any man, by color of martial law, this is murder." What 
is here meant by the words " in time of peace," is explained by 
judicial decisions to be " when the courts are open " — when, in 



104 FREE GOVERNMENT. 

other words, the civil establishment is in full operation. The 
Count de Lancaster, having been taken in open insurrection, was, by 
judgment of martial law, put to death ; and this, though it was 
conceded that Lancaster was taken in an armed effort to over- 
throw the laws, was adjudged murder. The reason assigned by the 
great English lawyers in the case of the Count de Lancaster, was 
that the courts were in full operation, with exclusive jurisdiction 
of the offence, and that the courts martial could in no case exercise 
authority over persons outside of the military service. The ques- 
tion of the actual guilt of the offender did not come before the 
court. Nor was it a question of jurisdiction between two courts 
of civil judicature. It was the exercise of illegal authority, by a 
tribunal which the common judgment of the nation regarded with 
distrust and aversion, and which the common experience of mankind 
had found necessary to keep within the strict limits of its constitu- 
tional powers. A more extreme illustration of this idea cannot be 
conceived than that of the execution of Governor Wall, twenty 
years after the offence had been committed. 

The Federal Government has delegated power to Congress to 
ordain articles of war for the government of the land and naval 
forces of the United States. The purpose of this grant is too ob- 
vious to justify comment. Its language indicates the scope of the 
authority delegated. It is necessary, everybody admits, to insti- 
tute separate and positive rules for the government of every mili- 
tary establishment. Hence, even in an elective republic like that 
of the Union, where the sovereign power, by common consent, 
remains in the people, whose General Government provides for the 
periodical return to them of all authority, it was found necessary to 
ordain for the army and navy distinct and positive regulations, of 
an arbitrary nature, to the end that discipline and efficiency might 
be preserved therein. Nobody will question the fact, that these 
regulations are in conflict, most essentially, with the great prin- 
ciples which underlie a free system of laws. There is no freedom, 
properly speaking, in military government. Nor can there be any. 
The best that can be done, is to so construct the political system 
of the state, that its civil establishment shall authorize and em- 
power the military to do certain thiDgs within its own service — 



MARTIAL LAW. 105 

limited exclusively to persons legally enrolled therein — which, by 
its constitution and the philosophy of the system, can be done no- 
where else. But even this authority must be strictly confined to 
the preservation of discipline ; for on no other basis can it be justi- 
fied, either by logical or analogical reasoning. Every officer, from 
the commander-in-chief to the lowest subaltern, is accountable to 
the civil establishment for the manner and extent of its exercise. 
The military is a creature of the law, and never a judge of the law. 
Its tribunals are limited by the Constitution of the United States, 
and by the practice of our own and the British. Government, to the 
narrow sphere of its own service, and in that service, to the simple 
preservation of discipline. 

Another consideration of the subject, it appears to us, is enti- 
tled to great weight in connection with the federal system. The 
authority of the Union is limited to certain specific grants, the 
States having retained to themselves all the powers of government 
not expressly delegated. The Supreme Court of the United States, 
in the case of Luther vs. Bordan, growing out of what is known as 
the Dorr Rebellion, stated expressly that they would follow the de- 
cisions of the State courts in all questions which concern merely 
the constitution and laws of the State. 

It will be remembered that the legislature of Rhode Island de- 
clared martial law within the limits of the State ; and that its 
officers, under the authority thus given them, not only assumed 
exclusive military jurisdiction over persons within the service, but 
enforced absolute rule over all the people. The case was an ex- 
treme one, indeed ; for martial law, as enforced, had not been thus 
enlarged, since the presentation and enactment of the Petition of 
Right, in England. It was carried out without any pretence of 
aid to the civil authorities, without any apparent recognition of the 
existence of a civil establishment at all, but by all the forms of 
arrest without warrant, oath, or affirmation, by breaking into 
houses, where no alleged offenders were found, and acting exclu- 
sively under military orders of the State. 

Chief-Justice Taney, without giving any opinion upon the 
legality of the proceedings, in rendering the decision of the court, 
declares that the United States have no power to go behind the 
5* 



106 FKEE GOYEKNMENT. 

action of the constituted authorities of a sovereign member of the 
Union. The case did not, in other words, come within the legal 
jurisdiction of the United States. It was for the State of Rhode 
Island alone to determine whether she would recognize an exclu- 
sive military government over her people, or not. 

"We allude to this phase of our compound system, to show that 
there are more powers than one to be consulted, in cases involving 
the unwarranted exercise of military authority in this country. 
That of the United States is limited to the federal army, within 
the scope of the laws, and to the single end of preserving discipline 
therein. On this subject we give entire, at the close of this chap- 
ter, the minority report of the judges, by Mr. Justice Woodbury, 
in the case of Luther vs. Bordan, because it is a full exposition of 
martial law, and its legal accuracy is not questioned by the major- 
ity decision, the latter resting the case exclusively on the ground 
that they had no right to go beyond the action of the authorities 
of a sovereign State. This report will be found very full in argu- 
ment and authority, and will well repay, in these times, a careful 
reading. In further illustration of the subject, we give entire the 
exposition of Lord Loughborough, of what in England is regarded 
as the relation of martial law to the civil establishment of the 
kingdom. 

Having traced out the origin of martial law (or military law, or 
the war power, as the arbitrary enforcement of military government 
has been indifferently denominated), its decline, under the gradual 
enlargement of the civil establishment, to its final overthrow, at 
the close of the sixteenth and commencement of the seventeenth 
centuries, we have now only to refer to the ordinary practice of the 
existing Administration to put the reader in possession of all that is 
necessary to enable him to form an enlightened judgment upon the 
current events of the day touching the maintenance of our free 
system of laws. It is quite unnecessary to reiterate what we have 
already stated upon this point. The exercise of martial law, to 
the utmost limit of its enforcement in England, up to the year 
1688 ; its actual control over all persons at will, both in and out 
of the military service ; its extension to the every-day exile or 
transportation of persons beyond the limits of the authority of the 



MARTIAL LAW. 107 

United States ; its levy and collection of taxes ; its arbitrary im- 
position of fines ; its arrest and imprisonment of citizens without 
any warrant of law ; its suppression of free speech, the press, re- 
ligious freedom, and trial by jury ; its confiscation of estates ; its 
summary execution or murder of persons ; and, finally, the open 
justification of all these acts, by high officers of state, are simple 
historical facts. It matters little, to a suffering people, by whose 
direction or order, or in what name, or by what pretended authority, 
these things have been done. They stand as historical events, jus- 
tified by those who have caused them, and the power that com- 
manded them is still supreme over public affairs. We will not 
undertake to argue the question whether they are legal or illegal. 
To any man of common understanding, they must be received as 
conclusive evidence of great depravity or great ignorance. 

It is too late in the progress of free government to argue the 
question whether the governor of a State is authorized, by the ex- 
istence of war or rebellion, to become a despot. We must submit 
tamely to the surrender of all that makes a nation of freemen, or 
we must vindicate our rights, enforce our laws, and cherish our 
ancient habits, customs, and traditions. We cannot command the 
respect of the world and permit such despotic institutions as martial 
law to govern our people. If we prefer a despotism to civil liberty, 
let us have it in its usual forms, and with its usual responsibilities. 
We cannot well suffer the agonies of a struggle for absolute rule. 
It would be far better, at once, to accept the new order, and aid to 
clothe it with the dignities and formalities of dynastic government. 

There are excuses to be urged in behalf of those who choose to 
submit to the arbitrary orders of a great military commander. 
Mankind are often disposed to yield a sort of homage to those whose 
career marks their superiority over their fellow men. The history 
of the world is full of instances of this nature, and we all dwell 
upon them with peculiar interest, and often feel our sympathies 
turning to those whose brilliant deeds have raised them to dynastic 
honors, even at the expense of the liberties of the people. 

We are not permitted to avail ourselves, however, of this species 
of justification for abandoning that noble structure of free govern- 
ment, under which we have lived and prospered from the very first 



108 FREE GOVERNMENT. 

day of our occupation of this continent. All our great men, with- 
out a single exception, have evinced the most earnest and profound 
love of our institutions. We remember no instance, in the whole 
history of the country up to the year 1861, in which a great public 
man has not shown his entire devotion to our free system of laws, 
and made their strict maintenance the first and last duty of every 
good citizen. Precisely when we had most need of fidelity and 
patriotism we have found both most wanting, among representatives 
and people. The Union, menaced by widespread and thoroughly 
organized rebellion against its authority, not by detached masses of 
the people, but by great and powerful constituent States, acting on 
the theory of the right of secession, we have undertaken to enforce 
its powers over all its original territories, not by the command and 
direction of the civil establishment, but solely by the command and 
power of the military. It is impossible to overlook the great fact 
that the employment of civil officers has ceased to be a perceptible 
feature in the general administration of the Union. Those duties 
which, with rare exceptions, under the British system, have not, for 
more than five hundred years, been intrusted to the military, are 
now habitually discharged by that arm of the public service. We 
venture to say that there is not one single general officer engaged 
in active service who, judged by English or federal law, has not 
made himself liable to infamous punishment through the courts of 
civil judicature ; nor is there the least question but those courts 
have legal jurisdiction of every such offence. But the actual power 
is all in the hands of the military ; at precisely the time, too, it 
must be borne in mind, when the people are called upon to submit 
to the heaviest sacrifices to uphold the authority and enforce the 
laws of the Union ! Just when we require the greatest integrity 
as an example to offenders, and as a means of uniting and strength- 
ening the friends of the Grovernment, precisely then we are made 
to feel that other than patriotic considerations control the councils 
and direct the policy of the nation. It is surely not martial law 
and military government, extended over the " loyal " people of this 
country, which will best put down the " disloyal," and restore the 
supremacy of the laws. We cannot comprehend the wisdom of the 
policy which commands that if one State turns against the Union 



MARTIAL LAW. 109 

the authorities of the latter should disfranchise all the others, as 
the best means of restoring order and good neighborhood ; that if 
one section renounces its obligations, the others should be deprived 
of the power of fulfilling theirs. 

If the seceding States of the South were guilty of a great 
wrong in resisting the authority of the confederation, how is it possi- 
ble to make the proof of it available to us otherwise than by a faith- 
ful and honest effort, on our part, to restore that authority? If 
we consent that the laws shall be set aside, from whatever motive 
or on whatever pretext, are we less guilty of disobedience to their 
authority and commandment than the people of the seceding States ? 
There is surely nothing else to maintain than our free government. 
Mr. Webster says : " Whatever government is not a government of 
laws is a despotism, let it be called what it may." This is a plain 
proposition. If it is not the law that governs, what is it but a 
man ? Hence we find the same great statesman to lay down this 
principle in connection with the maintenance of a free system of 
laws : 

" Nothing can be more repugnant, nothing more hostile, nothing 
more directly destructive, than excessive, unlimited, and unconsti- 
tutional confidence in men ; nothing worse than the doctrine that 
official agents may interpret the public will in their own way, in 
defiance of the Constitution and laws; or that they may set up 
anything for the declaration of that will except the Constitution 
and the laws themselves ; or that any public officer, high or low, 
should undertake to constitute himself, or to call himself, the repre- 
sentative of the people, except so far as the Constitution and laws 
create and denominate him such representative." 

This language is equally plain and conclusive. The subject 
under discussion was the exercise of executive powers by the Pres- 
ident of the United States. Those powers are all expressly defined. 
To go beyond their authority is " repugnant, hostile, and destruc- 
tive to the Constitution and laws of the state ; " for when u official 
agents " go beyond that authority, then surely we have not a gov- 
ernment of laws, but a despotism, " let it be called what it may." 
The inquiry is returned to us, can we be ranked as vindicators of 
the Constitution and laws of the Union, so long as we permit our 



110 FREE GOVERNMENT. 

official agents to set up anything else as the governing power over 
the people ? 

Do we come to the work with clean hands to enforce the 
laws, or seek the restoration of friendly intercourse and political 
brotherhood between the North and the South, when throughout all 
the loyal States we find the civil establishment to have been super- 
seded or driven out by the military ? 

Can we be considered Union men, battling for the preservation 
of the Constitution and the enforcement of the laws, until we have 
stricken down that dominant military power which now governs all 
the " loyal " States ? 

If we are contending for anything, it is for the civil establish- 
ment. It is a great misfortune for a free state ever to be compelled 
to call into being a military force of any considerable numbers, and 
a great crime to permit its employment in any other way than in 
aid of and obedience to the orders of civil tribunals. 

A free state can never have any sufficient occasion for the en- 
forcement of martial law, for when that species of arbitrary and 
irresponsible government is really necessary, the evidence will be 
conclusive that it has ceased, to all practical intents and purposes, 
to be a free state. A despotism is made by the exercise of original 
and supreme power by the chief of a state. It consists in the 
simple fact that such power may be exercised. It would be not 
less a despotism in the event of the assumption of supreme power, 
in particular cases, whether the chief should enforce the former 
laws of the community or not. Cromwell governed through estab- 
lished English tribunals and laws long after his assumption of 
dictatorial powers. Hume says, on this subject, that " all the chief 
offices in the courts of judicature were filled with men of integrity; 
amidst the violence of faction the decrees of the judges were upright 
and impartial ; and to every man but himself, where necessity required 
the contrary, the law was the great rule of conduct and behavior." 

Nobody will question the completeness of the revolution which 
conferred upon the Lord Protector dictatorial and despotic powers. 
The process of its exercise is admirably described by the same 
learned historian : 

" The Protector instituted twelve major-generals, and divided 



MAKTIAL LAW. Ill 

the whole kingdom of England into so many military jurisdictions. 
These men, assisted by commissioners, had power to subject whom 
they pleased to decimation, to levy all the taxes [see recent pro- 
ceedings of General Hugh Ewing in Kentucky, and like proceed- 
ings in Missouri and other States] imposed by the Protector and 
his council, and to imprison any person who should be exposed to 
their jealousy or suspicion; nor was there any appeal from them 
but to the Protector himself and his council. Under color of 
these powers, which were sufficiently exorbitant, the major-gener- 
als exercised authority still more arbitrary, and acted as if absolute 
masters of the property and person of every subject All reasonable 
men now concluded that the very mask of liberty was thrown aside, 
and that the nation was forever subjected to military and despotic 
government, exercised not in the legal manner of European nations, 
but according to the maxims of Eastern tyranny. Not only the 
supreme magistrate owed his authority to illegal force and usurpa- 
tion, he had parcelled out the people into so many subdivisions of 
slavery, and had delegated to his inferior ministers the same un- 
limited authority which he himself had so violently assumed." 

Perhaps no chief of a state ever made more sanctimonious profes- 
sions of friendship for the people, or more repeated promises to 
preserve and maintain the civil establishment, than Cromwell. If 
he exercised absolute powers, it was necessary, he claimed, in order 
to put down " disloyal " persons. Without the time or disposition 
to enter at large into the enormous wrongs of the Protector's gov- 
ernment, one great fact is apparent, that he was not only the chief 
of a Puritan faction, but his administration of the state was so 
conducted as to practically exclude from the body politic every 
subject who did not enter fully into his policy. All such persons 
were regarded and treated as " disloyal " to the government. It 
is not difficult to see from this basis how readily and conclusively 
the right was established to forage on all those who did not either 
really or nominally sustain his " God-ordained Protectorate." He 
had made ample provision for carrying out his work of oppression 
and confiscation, by parcelling out the people into military sections, 
and setting over each a major-general. 

The employment of the civil establishment, even through the 



112 FREE GOVERNMENT. 

most pliant of agents, was too cumbrous, heavy, and uncertain to 
answer his purpose. There is always too much light in courts of 
judicature to render their employment in works of oppression 
either safe or effective. " An army," on the other hand, says Hume, 
" is so forcible, at the same time so coarse a weapon, that any hand 
which wields it may, without much dexterity, perform any opera- 
tion and attain any ascendant in human affairs." 

It is hardly necessary to add , that neither persons nor prop, 
erty have ever been respected under the government of military 
law. 

Mr. Webster says : " We have no experience that teaches us 
that any other rights are safe where property is not safe. Confis- 
cations and plunder are generally, in revolutionary commotions, not 
far before banishment, imprisonment, and death. It would be mon- 
strous to give even the name of government to any association in 
which the rights of property should not be completely secured. . . 
. . . The English Revolution of 1688 was a revolution in favor of 
property, as well as of rights. It was brought about by the men 
of property, for their security; and our own immortal Revolution 
was undertaken not to shake or plunder property, but to pro- 
tect it." 

The civil establishment, under every government, represents 
and enforces the legal rights of the whole people, while the mili- 
tary establishment, under every known system, has been found prac- 
tically to represent a faction. It is the very law of faction. It 
bears complete resemblance, in all its features and in all its ac- 
tions, to a faction. Impatient of control, unruly, dictatorial, and 
uncompromising, it commands where expostulation would be bet- 
ter, and punishes where restraint alone is needed. We cannot do 
better in illustration of this idea than again to summon Mr. Web- 
ster : 

" Liberty is the creature of law, essentially different from that 
authorized licentiousness that trespasses on right. It is a legal 
and a refined idea, the offspring of high civilization, which the sav- 
age never understood and never can understand. Liberty exists 
in proportion to wholesome restraint ; the more restraint on others, 
to keep off from us, the more liberty we have The working 



MARTIAL LAW. 113 

of our complex system, full of checks and restraints on legislative, 
executive, and judicial power, is favorable to liberty and justice. 
Those checks and restraints are so many safeguards thrown around 
individual rights and interests. That man is free who is protected 
from injury." 

This power of protection exists solely in the law. Beyond the 
law it is all despotism. Revolutions involving the mere over- 
throw of one dynasty and the substitution of another, which takes 
up the old system of laws and enforces them, are of little compar- 
ative consequence. Beyond the derangement of business, for the 
day, and the displacement of one set of officers for another, their 
influence is scarcely felt. We may, without any extravagance, de- 
nominate our periodical elections as so many constitutional revo- 
lutions. They are important only as tbey involve greater or less 
fidelity to the law, in those who come in and those who go out of 
office. It is certainly a weak point in the system, that in the na- 
ture of things, the highest order of statesmanship is hardly eligible 
to the highest dignities of the state. The very term, " popular 
elections," indicates the necessity of giving one ear, if not both, to 
policy. He who can get the most votes is a better man in the 
judgment of partisans than he who is most learned, honest, truth- 
ful, and experienced in the conduct of public affairs. Policy is 
far more potent than the law. So we have found it. When it 
demanded the suspension of the civil establishment and the en- 
forcement of martial law, we promptly gave up the one and sanc- 
tioned the other. Nothing was more common in the earlier stages 
of the present rebellion than for public writers to enter solemn 
protests against the enforcement of martial law, in the State of 
New York, for instance, while they justified its exercise in the bor- 
der States, whose rights rest upon precisely the same foundations 
as those of the people of New York. It was policy that dictated 
those protests. It was not principle, because, had they been gov- 
erned by its rules, they would never have justified so gross and 
clear a violation of them. 

The minority report by Mr. Justice Woodbury, of the Supreme 
Court of the United States, in the case of Luther against Bordan 



114 FREE GOVEENMENT. 

embraces a very full and accurate review of the power of martial 
law : 

" This is no new distinction in judicial practice any more than 
in judicial adjudications. The pure mind of Sir Matthew Hale, 
after much hesitation, at last consented to preside on the bench in 
administering the laws between private parties under a government 
established and recognized by other governments, and in full 
possession de facto of the records and power of the kingdom, but 
without feeling satisfied on inquiring, as a judicial question, into 
its legal rights. Cromwell had ' gotten possession of the govern- 
ment,' and expressed a willingness ' to rule according to the laws 
of the land' — by ' red gowns rather than red coats,' as he is re- 
ported to have quaintly remarked. And this Hale thought justified 
him in acting as a judge. (Hale's Hist, of the Com. Law, p. 14, 
Preface.) For a like reason, though the power of Cromwell was 
soon after overturned, and Charles the Second restored, the judicial 
decisions under the former remained unmolested on this account, 
and the judiciary went on as before, still looking only to the de facto 
government for the time being. Grotius virtually holds the like 
doctrine. (B. I., ch. 4, sec. 20, and B. II"., ch. 13, sec. 11.) Such 
was the case, likewise, over most of this country, after the Declar- 
ation of Independence, till the acknowledgment of it by England 
in 1783. (3 Story's Com. on Const., §§ 214, 215.) And such is 
believed to have been the course in France under all her dynasties 
and regimes, during the last half century. 

" These conclusions are strengthened by the circumstance, that 
the Supreme Court of Rhode Island, organized since, under the 
second new constitution, has adopted this principle. In numerous 
instances, this court has considered itself bound to follow the deci- 
sion of the State tribunals on their own constitutions and laws. 
(See cases in Smith v. Babcock, 2 Woodb. & Min. ; 5 Howard, 
139 ; Elmendorf v. Taylor, 10 Wheat. 159 ; Bank of U. States v. 
Daniel et al., 12 Peters, 32.) This, of course, relates to their 
validity when not overruling any defence set up under the authority 
of the United States. None such was set up in the trial of Dorr, 
and yet, after full hearing, the Supreme Court of Rhode Island 
decided that the old charter and its legislature were the political 



MARTIAL LAW. 115 

powers which they were bound to respect, and the only ones legally 
in force at the time of this transaction ; and accordingly convicted 
and punished the governor chosen under the new constitution for 
treason, as being technically committed, however pure may have 
been his political designs or private character. (Report of Dorr's 
Trial, 1844, pp. 130, 131.) The reasons for this uniform compli- 
ance by us with State decisions made before ours on their own laws 
and constitutions, and not appealed from, are given by Chief-Justice 
Marshall with much clearness. It is only necessary to refer to his 
language in Elmendorf v. Taylor, 10 Wheat. 159. Starting, then, 
as we are forced to here, with several political questions arising on 
this record, and those settled by political tribunals in the State and 
General Government, and whose decisions on them we possess no 
constitutional authority to revise, all which, apparently, is left for 
us to decide is the other point — whether the statute establishing 
martial law over the whole State, and under which the acts 
done by the defendants are sought to be justified, can be deemed 
constitutional. 

" To decide a point like the last is clearly within judicial cogni- 
zance, it being a matter of private personal authority and right, 
set up by the defendants under constitutions and laws, and not of 
political power, to act in relation to the making of the former. • 

" Firstly, then, in order to judge properly whether this act of 
Assembly was constitutional, let us see what was the kind and 
character of the law the Assembly intended in this instance to 
establish, and under which the respondents profess to have acted. 

" The Assembly says : ' The State of Rhode Island and Provi- 
dence Plantations is hereby placed under martial law, and the same 
is hereby declared to be in full force until otherwise ordered by the 
General Assembly, or suspended by proclamation of his excellency 
the Governor of the State.' Now, the words ' martial law,' as 
here used, cannot be construed in any other than their legal sense, 
long known and recognized in legal precedents as well as political 
history. (See it in 1 Hallam's Const. Hist., ch. 5, p. 258; 1 Mac- 
Arthur on Courts Martial, 33.) The legislature evidently meant 
to be understood in that sense by using words of such well-settled 
construction, without any limit or qualification, and covering the 



116 FREE GOVERNMENT. 

whole State with its influence, under a supposed exingency and 
justification for such an unusual course. I do not understand this 
to he directly combated in the opinion just delivered by the Chief- 
Justice. That they could mean no other than the ancient martial 
law, often used before the Petition of Right, and sometimes since, 
is further manifest from the fact, that they not only declared 
' martial ' law to exist over the State, but put their militia into 
the field to help, by means of them and such a law, to suppress the 
action of those denominated ' insurgents,' and this without any 
subordination to the civil power, or any efforts in conjunction and 
in cooperation with it. The defendants do not aver the existence 
of any civil precept which they were aiding civil officers to execute, 
but set up merely military orders under martial law. Notwith- 
standing this, however, some attempts have been made at another 
construction of this act, somewhat less offensive, by considering it a 
mere equivalent to the suspension of the habeas corpus, and another 
still to regard it as referring only to the military code used in the 
armies of the United States and England. But when the legislature 
enacted such a system ' as martial law,' what right have we to say 
that they intended to establish something else and something 
entirely different ? A suspension, for instance, of the writ of habeas 
corpus — a thing not only unnamed by them, but wholly unlike and 
far short in every view of what they both said and did ? Because 
they not only said, eo nomine, that they established ' martial law,' 
but they put in operation its principles; principles not relating 
merely to imprisonment, like the suspension of the habeas corpus, 
but forms of arrest without warrant, breaking into houses where 
no offenders were found, and acting exclusively under military 
orders rather than civil precepts. 

" Had the legislature meant merely to suspend the writ of habeas 
corpus, they, of course, would have said that, and nothing more. 
A brief examination will show, also, that they did not thus intend 
to put in force merely some modern military code, such as the 
Articles of War made by Congress, or those under the Mutiny Act 
in England. They do not mention either, and what is conclusive 
on this, neither would cover or protect them, in applying the pro- 
visions of those laws to a person situated like the plaintiff. For 



MARTIAL LAW. 117 

nothing is better settled than that military law applies only to 
military persons; but ' martial law' is made here to apply to all. 
(Hough on Courts Martial, 384, note ; 27 State Trials, 625, in 
Theobald Wolfe Tone's case.) 

" The present laws for the government of the military in Eng- 
land, also, do not exist in the vague and general form of martial 
law ; but are explicitly restricted to the military, and are allowed 
as to them only to prevent desertion and mutiny, and to preserve 
good discipline. (1 Bl. Com. 412; 1 Mac Arthur on Courts 
Martial, p. 20.) So, in this country, legislation as to the military 
is usually confined to the General Grovernment, where the great 
powers of war and peace reside. And hence, under those powers, 
Congress, by the act of 1806 (2 Stat, at Large, 359), has created 
the Articles of War, ' by which the armies of the United States 
shall be governed,' and the militia when in actual service, and 
only they. To show this is not the law by which other than those 
armies shall be governed, it has been found necessary, in order to 
include merely the drivers or artificers ' in the service,' and the 
militia after mustered into it, to have special statutory sections, 
(See articles 96 and 97.) Till mustered together, even the militia 
are not subject to martial law. (5 Wheat. 20; 3 Stor. Com. Const. 
§ 120.) And whenever an attempt is made to embrace others in its 
operation, not belonging to the military or militia, nor having ever 
agreed to the rules of the service, well may they say, we have not 
entered into such bonds — in hcec vincidce, non veni. (2 Hen. Bl. 
99; 1 Bl. Com. 408, 414; 1 D. & E. 493, 550, 784; 27 State 
Trials, 625.) Well may they exclaim, as in Magna Charta, that 
1 no freeman shall be taken or imprisoned but by the lawful judg- 
ment of his equals, or by the law of the land.' There is no pre- 
tence that this plaintiff, the person attempted to be arrestod by the 
violence exercised here, was a soldier or militiaman then mustered 
into the service of the United States, or of Rhode Island, or sub- 
ject by its laws to be so employed, or on that account sought to be 
seized. He could not, therefore, in this view of the case, be arrested 
under this limited and different kind of military law, nor houses be 
broken into for that purpose and by that authority. 

"So it is a settled principle even in England, that, 'under the 



118 FREE GOVERNMENT. 

British Constitution, the military law does in no respect either 
supersede or interfere with the civil law of the realm,' and that 
* the former is in general subordinate to the latter ' (Tytler on 
Military Law, 365) ; while ' martial law ' overrides them all. The 
Articles of War, likewise, are not only authorized by permanent 
rather than temporary legislation, but they are prepared by or 
under ifc with punishments and rules before promulgated, and 
known and assented to by those few who are subject to them, as 
operating under established legal principles and the customary 
military law of modern times. (1 East, 306, 313 ; Pain v. Wil- 
lard, 12 Wheat. 539, and also 19 ; 1 MacArthur, Courts Martial, 13 
and 215.) They are also definite in the extent of authority under 
them as to subject-matter as well as persoos, as they regulate and 
restrain within more safe limits the jurisdiction to be used, and 
recognize and respect the civil rights of those not subject to it, and 
even of those who are in all other matters than what are military 
and placed under military cognizance. (2 Stephen on Laws of 
Eng. 602; 9 Bac. Abr., Soldier, F; Tytler on Military Law, 
119.) And as a further proof how rigidly the civil power requires 
the military to confine even the modified code martial to the mili- 
tary, and to what are strictly military matters, it cannot, without 
liability to a private suit in the judicial tribunals, be exercised on 
a soldier himself for a cause not military, or over which the officer 
had no right to order him ; as, for example, to attend school in- 
struction, or pay an assessment towards it out of his wages. (4 
Taunt. 67; 4 Maule & Selw. 400; 2 Hen. Bl. 103, 537; 3 
Cranch, 337 ; 7 Johns. 96.) 

" The prosecution of Governor Wall in England, for causing, 
when he was in military command, a soldier to be seized and flog- 
ged so that he died, for an imputed offence not clearly military and 
by a pretended court martial without a full trial, and executing 
Wall for the offence after a lapse of twenty years, illustrate how 
jealously the exercise of any martial power is watched in England, 
though in the army itself and on its own members. (See Annual 
Register for 1802, p. 569; 28 State Trials, p. 52, Howell's ed.) 

" How different in its essence and forms, as well as subjects, 
from the Articles of War was the " martial law " established here 



MARTIAL LAW. 119 

over the whole people of Rhode Island, may be seen by adverting 
to its character for a moment, as described in judicial as well as 
political history. It exposed the whole population, not only to be 
seized without warrant or oath, and their houses broken open and 
rifled, and this where the municipal law and its officers and courts 
remained undisturbed and able to punish all offences, but to send 
prisoners, thus summarily arrested in a civil strife, to all the harsh 
pains and penalties of court martial or extraordinary commissions, 
and for all kinds of supposed offences. By it, every citizen, instead 
of reposing under the shield of known and fixed laws as to his 
liberty, property, and life, exists with a rope round his neck, subject 
to be hung up by a military despot at the next lamp-post under the 
sentence of some drumhead court martial. (See Simmons's Pract. 
of Courts Martial, 40.) See such a trial in Hough on Courts Mar- 
tial, 383, where the victim on the spot was ' blown away by a gun,' 
neither l time, place, or persons considered.' As an illustration 
.how the passage of such a law may be abused, Queen Mary put it 
in force in 1558, by proclamation merely, and declared, 'that 
whosoever had in his possession any heretical, treasonable, or sedi- 
tious booh, and did not presently burn them, without reading them 
or showing them to any other person, should be esteemed a. rebel, 
and without further delay be executed by the martial law.'' (Tytler 
on Military Law, p. 50, ch. 1, sec. 1.) 

" For convincing reasons like these, in every country which 
makes any claim to political or civil liberty, ( martial law,' as here 
attempted and as once practised in England against her own people, 
has been expressly forbidden for near two centuries, as well 
as by the principles of every other free constitutional government. 
(1 Hallam's Const. Hist. 420.) And it would be not a little 
extraordinary if the spirit of our institutions, both State and 
national, was not much stronger than in England against the un- 
limited exercise of martial law over a whole people, whether at- 
tempted by any chief magistrate or even by a legislature. 

" It is true, and fortunate it is that it is true, the consequent actual 
evil in this instance from this declaration of martial law was smaller 
than might have been naturally anticipated. But we must be 
thankful for this, not to the harmless character of the law itself, 



120 FREE GOVERNMENT. 

but rather to an inability to arrest many, or from the small opposi- 
tion in arms, and its short continuance, or from the deep jealousy 
and rooted dislike generally in this country to any approach to the 
reign of a mere military despotism. Unfortunately-, the legislature 
had heard of this measure in history, and even at our Revolution, 
as used by some of the British generals against those considered 
rebels ; and, in the confusion and hurry of the crisis, seem to have 
rushed into it suddenly, and, I fear, without a due regard to private 
rights, or their own constitutional powers, or the supervisory au- 
thority of the General Government over wars and rebellions. 

" Having ascertained the kind and character of the martial law 
established by this Act of Assembly in Rhode Island, we ask next, 
how, under the general principles of American jurisprudence in 
modern times, such a law can properly exist, or be judicially 
upheld ? A brief retrospect of the gradual, but decisive repudiation 
of- it in England will exhibit many of the reasons why such a law 
cannot be rightfully tolerated anywhere in this country. 

" One object of parliamentary inquiry, as early as 1620, was to 
check the abuse of martial law by the king which had prevailed 
before. (Tytler on Military Law, 502.) The Petition of Right, in 
the first year of Charles the First, reprobated all such arbitrary 
proceedings in the just terms and in the terse language of that 
great patriot as well as judge, Sir Edward Coke, and prayed they 
might be stopped and never repeated. To this the king wisely 
replied, ' Soit droit fait comme est desire — Let right be done as 
desired.' (Petition of Right, in Statutes at Large, 1 Charles I.) 
Putting it in force by the king alone was not only restrained by 
the Petition of Right early in the seventeenth century, but virtual- 
ly denied as lawful by the Declaration of Rights in 1688. (Tytler 
on Military Law, 307.) Hallam, therefore, in his Constitutional 
History, p. 420, declares its use by 'the commissions to try 
military offenders by martial law a procedure necessary within 
certain limits to the discipline of an army, but unwarranted by the 
constitution of this country.' Indeed, a distinguished English 
judge has since said, that l martial law,' as of old, now l does not 
exist in England at all,' 'was contrary to the constitution, and 
has been for a century totally exploded.' (Grant v. Gould, 2 Hen. 



MARTIAL LAW. 121 

Bl. 69; 1 Hale's P. C. 346; Hale's Com. Law, eh. 2, p. 36; 1 Mac- 
Arthur, 55.) This is broad enough, and is correct as to the com- 
munity generally in both war and peace. No question can exist as 
to the correctness of this doctrine in time of peace. The Mutiny 
Act itself, for the government of the army, in 36 Geo. III., ch. 24, 
sec. 1, begins by reciting, ' Whereas, no man can be forejudged of 
life and limb, or subjected in time of peace to any punishment 
within the realm by martial law.' (Simmons's Pract. of Courts 
Martial, 38.) 

" Lord Coke says, in 3 Inst. 52 : ' If a lieutenant, or any other 
that hath commission of martial authority in time of peace, hang or 
otherwise execute any man by color of martial law, this is murder.' 
1 Thorn. Count de Lancaster, being taken in open insurrection, was 
by judgment of martial law put to death,' and this, though during 
an insurrection, was adjudged to be murder, because done in time 
of peace, and wbile the courts of law were open. (1 Hallam's Const. 
Hist. 260.) The very first Mutiny Act, therefore, under William 
the Third, was eautious to exonerate all subjects except the military 
from any punishment by martial law. (Tytler on Military Law, 19, 
note.) In this manner it has become gradually established in Eng- 
land, that in peace the occurrence of civil strife does not justify 
individuals or the military or the king in using martial law over 
the people. 

" It appears, also, that nobody has dared to exercise it, in war or 
peace, on the community at large, in England, for the last century 
and a half, unless specially enacted by Parliament, in some great 
exigency and under various restrictions, and then under the theory, 
not that it is consistent with bills of rights and constitutions, but 
that Parliament is omnipotent, and for sufficient cause may override 
and trample on them all, temporarily. 

" After the civil authorities have become prostrated in particular 
places, and the din of arms has reached the most advanced stages 
of intestine commotions, a Parliament which alone furnishes the 
means of war — a Parliament unlimited in its powers — has, in extre- 
mis, on two or three occasions, ventured on martial law beyond the 
military ; but it has usually confined it to the particular places 
thus situated, limited it to the continuance of such resistance, and 



122 FREE GOVERNMENT. 

embraced in its scope only those actually in arms. Thus the 
' Insurrection Act' of November, 1796, for Ireland, passed by the 
Parliament of England, extended only to let magistrates put people 
' out of the king's peace,' and subject to military arrest, under 
certain circumstances. Even then, though authorized by Parliament, 
like the General Government here, and not a State, it is through 
the means of the civil magistrate, and a clause of indemnity goes 
with it against prosecutions in the ' king's ordinary courts of law.' 
(Annual Register, p. 173, for a. d. 1798 ; 1 MacArthur, Courts 
Martial, 34.) See also the cases of the invasions by the Pretender 
in 1715 and 1745, and of the Irish rebellion in 1798. (Tytler on 
Military Law, 48, 49, 369, 370, App. No. 6, p. 402, the act passed by 
the Irish Pari.; Simmons's Practice of Courts Martial, App. 633.)" 

In the case of Grant vs. Sir Charles Gould, 1792, Lord Lough- 
borough rendered the following opinion touching the status of 
martial law in England ; 

" The suggestion begins, by stating the laws and statutes of the 
realm, respecting the protection of personal liberty. It goes on to 
state, that no person ought to be tried by a court martial, for any 
offence not cognizable by martial law, and so on. In the prelimi- 
nary observations upon the case, my brother Marshall went at length 
into the history of those abuses of martial law which prevailed in 
ancient times. This leads me to an observation, that martial law, 
such as it is described by Hale, and such also as it is marked by 
Mr. Justice Blackstone, does not exist in England at all. Where 
martial law is established and prevails in any country, it is of a 
totally different nature from that which is inaccurately called mar- 
tial law, merely because the decision is by a court martial, but 
which bears no affinity to that which was formerly attempted to be 
exercised in this kingdom ; which was contrary to the constitution, 
and which has been for a century totally exploded. Where mar- 
tial law prevails, the authority under which it is exercised claims a 
jurisdiction over all military persons, in all circumstances. Even 
their debts are subject to inquiry by a military authority ; every 
species of offence, committed by any person who appertains to the 
army, is tried, not by a civil judicature, but by the judicature of 
the regiment or corps to which he belongs. It extends also to a 



MARTIAL LAW. 123 

great variety of eases not relating to the discipline of the army, in 
those states which subsist by military power. Plots against the 
sovereign, intelligence to the enemy, and the like, are all consid- 
ered as cases within the cognizance of military authority. 

" In the reign of King William there was a conspiracy against his 
person in Holland, and the persons guilty of that conspiracy were 
tried by a council of officers. There was also a conspiracy against 
him in England, but the conspirators were tried by the common law. 
And within a very recent period, the incendiaries who attempted to 
set fire to the docks at Portsmouth were tried by the common law. 
In this country, all the delinquencies of soldiers are not triable, as in 
most countries in Europe, by martial law ; but where they are or- 
dinary offences against the civil peace, they are tried by the com- 
mon law courts. Therefore it is totally inaccurate to state martial 
law as having any place whatever within the realm of Great Britain. 
But there is, by the providence and wisdom of the legislature, an 
army established in this country, of which it is necessary to keep up 
the establishment. The army being established by the authority 
of the legislature, it is an indispensable requisite of that establish- 
ment, that there should be order and discipline kept up in it, and 
that the persons who compose the army, for all offences in their 
military capacity, should be subject to a trial by their officers. That 
has induced the absolute necessity of a mutiny act, accompanying 
the army. It has happened, indeed, at different periods of the gov- 
ernment, that there has been a strong opposition to the establishment 
of the army. But the army being established and voted, that led 
to the establishment of a mutiny act. A remarkable circumstance 
happened in the reign of George the First, when there was a division 
of parties on the vote of the army. The vote passed, and the army 
was established, but from some political incidents which had hap- 
pened, the party who opposed the establishment of the army would 
have thrown out the mutiny bill. Sir Robert Walpole was at the 
head of that opposition, and when some of their most sanguine 
friends proposed it to them, they said, as there was an army estab- 
lished, and even if the army was to be disbanded, there must be a 
mutiny act, for the safety of the country. It is one object of that 
act to provide for the army ; but there is a much greater cause for 



124 FREE GOVEKNTMENT. 

the existence of a mutiny act, and that is the preservation of the 
peace and safety of the kingdom ; for there is nothing so dangerous 
to the civil establishment of a state as a licentious and undisciplined 
army ; and every country which has a standing army in it is 
guarded and protected by a mutiny act. An undisciplined soldiery 
are apt to be too many for the civil power ; but under the command 
of officers, those officers are answerable to the civil power that they 
are kept in good order and discipline. All history and all experi- 
ence, particularly the experience of the present moment, give the 
strongest testimony to this. The object of the mutiny act, there- 
fore, is to create a court invested with authority to try those who 
are a part of the army, in all their different descriptions of officers 
and soldiers ; and the object of the trial is limited to breaches of 
military duty. Even by that extensive power granted by the 
legislature to his majesty, to make articles of war, those articles 
-are to be for the better government of his forces, and can extend 
no farther than they are thought necessary to the regularity and 
due discipline of the army. Breaches of military duty are in 
many instances strictly denned ; they are so in all cases where 
capital punishment is to be inflicted ; and in other instances where 
the degree of offence may vary, it may be necessary to give a 
discretion with regard to the punishment, and in some cases it is 
impossible more strictly to mark the crime than to call it a neglect 
of discipline. 

" This court being established in this country by positive law, 
the proceedings of it, and the relation in which it will stand to the 
courts of Westminster Hall, must depend upon the same rules with 
all other courts which are instituted and have particular powers 
given them, and whose acts, therefore, may become the subject of 
application to the courts of Westminster Hall for a prohibition. 
Naval courts martial, military courts martial, courts of admiralty, 
courts of prize, are all liable to the controlling authority which the 
courts of Westminster Hall have from time to time exercised, for the 
purpose of preventing them from exceeding the jurisdiction given 
to them; the general ground of prohibition being an excess of juris- 
diction, when they assume a power to act in matters not within 
their cognizance." 



PART SECOND 



CHAPTEK I. 

THE ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 

OBJECT OF THE PRESENT WORK FREEDOM AMONG THE ANGLO-SAXONS — EORLS AND 

CEORLS — ORIGIN OF THE DISTINCTION LOCAL CHARACTER OF THE SAXON 

SYSTEM — THE TYTHING AND FRANK-PLEDGE THE HUNDRED — THE BURGH 

THE SHIRE — ILLUSTRATION OF COUNTY COURT PROCEEDINGS — ORIGIN OF LEGAL 
CUSTOMS IN THE FOLK-COURTS — CONSTITUTION AND POWERS OF THE WITTENA- 
GEMOTE — CONSTITUTION OF THE SAXON EMPIRE — -"DECADENCE OF THE SAXON 
SYSTEM. 

The liberties of England — and of these United States — as they 
exist to-day, were not created by the generosity of princes, nor 
devised by legislative wisdom. They were the unquestioned birth- 
right of our Anglo-Saxon forefathers a thousand years ago, and 
only wrested after centuries of contest from the royal power which 
had unlawfully suppressed them. Freedom is the natural condition 
of mankind : but when, in the formation of political organizations, 
the freedom of the people is surrendered to the ruling power, it 
cannot be regained but by a long, persistent, and determined strug- 
gle, waged through revolution after revolution, till at length the 
people wins back only that which it ought never to have lost. In 
such a sequence of events, nothing can be certainly predicted but 
the bloody penalty of infidelity to freedom. It is never certain that 
the ancient liberty will be recovered. Of the modern nations sprung 
from the German tribes which took possession of the Roman terri- 
tories at the great upbreaking of the Empire, and established in 
their new homes the free customs and immunities which were their 
immemorial inheritance, not one, save England, has been able to 
this day to cast off utterly the yoke of bondage set upon their necks 
by mediaeval feudalism ; and even England had to struggle for six 



128 ANGLO-SAXON" SYSTEM OF LOCAL SOYEKEIGNTIES. 

centuries before she was secure in the enjoyment of the rights which 
no man dared to question in the days of Saxon Edward the Con- 
fessor. 

We believe the time has come when these United States must 
choose deliberately and finally between the principles of Saxon free- 
dom and of feudal servitude. If they shall choose the former, unborn 
generations will rise up to call them blessed : if the latter, no one 
can foretell the heritage of blood and strife they will bequeath to 
their posterity. 

Our purpose is to show the animating spirit of the Saxon sys- 
tem ; the antagonistic principle of feudalism which superseded it ; 
the dire necessities which forced the Norman barons to repudiate 
their feudal obligations and fall back on ancient statutes of the 
Saxon kingdom, battling with the Saxon commons for their an- 
cient Saxon rights ; and the successive steps by which the long- 
lost liberties of England were won back from the strong grasp of 
kingly usurpation. 

As the subject of the present chapter is the Anglo-Saxon sys- 
tem, it is important to observe that every Saxon man was free ; 
and free not merely in the sense of being his own master, but be- 
cause he was " a living unit in the state." He held lands in his 
own right. He was entitled to attend the courts, and join in their 
deliberations. He could bear arms, and had the legal power to use 
them in maintaining his just rights, even to the extent of making 
violent reprisals for the injuries inflicted on him by his enemies. 
Indeed, so far was this right of the freeman carried, that the Sax- 
on, like the ancient Hebrew, was permitted voluntarily to abdicate 
his freedom and become the vassal of another under whose control 
he chose to place himself. 

It is true the freedom of the Saxons did not necessarily include 
the notion of equality. Far otherwise. They were divided into 
two great classes, eorls and ceorls, or gentlemen and commons ; a 
distinction which the learned Lingard says was merely personal, 
conveying neither property nor power. The eorls were said to be 
ethel-born, that is, of noble birth ; which, probably, among a people 
who acknowledged no merit superior, or even equal, to that of mar- 
tial prowess, was applied only to those whose fathers had never 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 129 

exercised the occupations of husbandry or the mechanic arts. 
" Yet the eorl possessed important advantages. In fact, he was also 
designated as twelf-haend-man, while to the ceorl was given the 
appellation of twi-haend-man, which would place their compara- 
tive worth in the estimation of the Saxon law in the ratio of twelve 
to two, or six to one ; " and in certain judicial and other proceed- 
ings an actual advantage attached to the eorls in this ratio. The 
ceorl, however, was by no means a degraded person. He might 
raise himself by industry or enterprise to be an eorl. A merchant 
who went thrice across the sea in his own craft became an eorl. 
Or, if a ceorl acquired five hides of land — about six hundred 
acres — having thereupon a church and mansion for his family, he 
too, became an eorl. Thus the distinction appears to have been 
chiefly honorary, though in certain matters evident advantages at- 
tached to the superior rank. 

The sense of personal freedom and responsibility was strangely 
mingled in the Saxon mind with reverence for rank, which to 
the Saxon represented martial glory. Moreover, the notion of 
the family relation was extended to the tribe, of which the chief, 
whose office was elective, was the head and representative. Taci- 
tus informs us that in his time the German chieftains were sur- 
rounded by bands of adherents or companions, who voluntarily 
attached themselves to their respective leaders. They were the 
chieftain's ornament and pride in peace ; in war, the chief source of 
his power. The only tie which bound them to his person was that 
of honor and affection. He considered it his duty to reward their 
services ; but his rewards were not regarded in the light of pay. 
The notion of obligatory or purchased service was repudiated by 
the chief no less than by his free companions. In such estimation 
was this institution held, that every freeman was, for a long time, re- 
quired to be connected with some chieftain, who was called his 
hlaford, i. e. lord, although his choice was wholly unrestrained as 
to the particular chieftain under whom he placed himself. The 
freeman did not become a vassal, and still less a slave, to his supe- 
rior. Their connection was a simple social contract, freely enter- 
ed into both by lord and man, and might be terminated at the 
choice of either. While it lasted, they were bound to mutual de- 
6* 



130 ANGLO-SAXON" SYSTEM OF LOCAL SOVEREIGNTIES. 

fence against all wrongs and enemies whatever. The lord was the 
man's legal surety and the champion of his man's right, and to fail 
in this regard was held to be dishonor. On the other hand, the 
man was present and took part in the lord's courts and councils, 
and attended him in war. Desertion of the standard of his lord in 
open fight was treason ; but he was at liberty at any other time to 
leave his lord and choose another. 

Evidently this relationship of lord and freeman must have exer- 
cised a potent influence in the development of Anglo-Saxon institu- 
tions. The settlements of the Germanic tribes in Britain were 
effected at successive times, in different localities, and under dif- 
ferent leaders, who established on the soil of Britain many tribes 
which , though of kindred blood and speech, were not identical. 
Eight independent kingdoms therefore soon appeared, in all of 
which the public polity was of the same free type, although their 
mutual independence necessarily prevented uniformity. Of the va- 
rious steps whereby these different kingdoms were at length united 
under one crown, it is not our purpose now to speak at length. 
Suffice it, for the present, to observe that the union of the crowns 
did not at all imply a union of the kingdoms. These, as we shall 
see, remained distinct, and unless when voluntary coalitions were 
effected, they retained their own laws, with their independent 
witena-gemotes or parliaments. 

In sketching such a simple system as the Anglo-Saxon, the most 
ready way of giving a complete view is to begin with the Individ- 
ual. This we have already done, and shown sufficiently that every 
Saxon man was in the best and highest sense a freeman. Slaves, 
among the Anglo-Saxons, were their subjugated enemies. We are 
now to show the various institutions and divisions of the people 
which made up the sum of the Anglo-Saxon government; and we 
shall find throughout the whole, that its one animating principle was 
that of Local Sovereignty. Consolidated power was totally un- 
known among them. From the least matters to the greatest, every 
right of jurisdiction vested in the local power alone, to the exclu- 
sion of all others whatsoever. In a word, the local powers were 
sovereign and independent in all local matters. 1 

The first and elemental division of the Anglo-Saxon people was 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 131 

the Tytiitng, with its officer and representative, the tythiug-man. 
It was founded on no territorial basis, but was simply the embodi- 
ment of every ten households or families of such freemen as were 
not in the " mund," or under the protection of a superior lord. It 
was a police division, in which each man of the ten became re- 
sponsible in some degree for all the rest, under a kind of suretyship, 
called Frank-Pledge. If one of them committed a crime, it was the 
duty of the rest to produce him in justice, that the wrong-doer might 
make reparation by his own property, or by personal punishment. 
In case of his escape, the tything was allowed to purge itself of all 
participation in the crime and the escape ; but, failing such an ex- 
culpation, if the malefactor's property proved insufficient for the 
payment of the penalty, the tything was compelled to make it 
good. The influence of such a local system of responsibility in 
rude times can be easily conceived. It was the interest of every 
man that each should keep the peace; and in this simplest distri- 
bution of the Anglo-Saxons, we perceive at once the presence of 
that principle of local unity and local supervision which becomes 
but clearer as we carry our investigations farther. 

Next in order to the tything was the Hundred, which was 
represented by its officer, the hundred-man. Concerning its organ- 
ization, antiquarians have had much dispute — some holding it to be 
a territorial division of the country into tracts, containing each one 
hundred hides of land ; while others with much plausibility main- 
tain that hundreds, like the tythings, were numerically organized, 
containing each one hundred families. The truth is, both opinions 
are most probably correct. In the southern kingdoms of the Oc- 
tarchy, the hundred could not have been organized on the same 
principle as in the northern. Sussex, for example, was divided 
into sixty-five hundreds, and Dorset into forty-three ; while York- 
shire had but twenty-six, and Lancashire not more than six. So 
wide a difference as this must have arisen from a difference of plan 
in the construction of the hundreds ; and as Alison observes, " the 
divisions of the north, properly called wapentakes, were planted 
upon a different system [from the hundreds of the south], and ob- 
tained the denomination of hundreds incorrectly, after the union of 
all England under a single sovereign." However this maybe, the 



132 ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 

union of the Anglo-Saxon crowns produced no change in the local 
law, either in the northern or the southern kingdoms ; and the wa- 
pentakes of the north, like the hundreds of the south, continued in 
the full enjoyment of their local customs. Every hundred held a 
hundred court once in each month, in which it took cognizance of 
causes both civil and criminal. The freemen of the hundred were 
at once the witnesses, the judges, and the jury in these courts. 
The hundred-man, with an ecclesiastic, aided them with his ad- 
vice on points of law or right, but the decision rested absolutely 
with the freemen of the hundred. So closely did our Saxon fathers 
guard the sovereignty of their local institutions, that it is ques- 
tionable whether an appeal was suffered to be made from the deci- 
sion of the hundred court, unless where litigants were residents 
of different hundreds. Yet it seems but reasonable to suppose that 
such appeals were sometimes made to the superior county courts. 

The Bukgh was a hundred, or, perhaps often, a union of hun- 
dreds, surrounded by a moat, wall, or stockade. Its business was 
transacted in its burgh courts, which had jurisdiction over causes 
arising within their limits. 

But the most important distribution of the country was into 
shires, or counties, which were strictly territorial divisions, and in- 
cluded within definite boundaries the freemen who composed the 
tythings and hundreds, lords with the men belonging to their 
" munds," burghs with their burghers, and religious houses with 
their tenants and dependants. In the shire courts, whose pre- 
siding officer was called an Ealdor-man, the most important ju- 
dicial business of the county was transacted at half-yearly sessions. 
Of their importance, Hallam observes as follows : " It has been 
justly remarked by Hume, that among a people who lived in so 
simple a manner as the Anglo-Saxons, the judicial power is al- 
ways of more importance than the legislative. The liberties of 
the Anglo-Saxon thanes (freemen) were chiefly secured — next to 
their swords and free spirits — by the inestimable right of deciding 
civil and criminal suits in their own county courts : an institution 
which, having survived the Conquest, contributed in no small de- 
gree to fix the liberties of England upon a broad and popular basis." 2 
The procedure of the county court was summary and simple. It 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 133 

was composed of all the freemen of the county who assembled at 
the regular time, or on a special summons if the court were held 
at any other time. The ealdorman, in later times, assisted by a 
bishop or other ecclesiastic, presided, and, no doubt, instructed 
these unlearned judges, but he had no power to force or overrule 
their verdict. The freemen of the shire decided the whole contro- 
versy. They judged the fact and applied the law. The only duty 
of the ealdorman was to execute their judgments. The following 
account from an old chronicle of the proceedings in an Anglo-Saxon 
shire gemote or county court, will illustrate the summary and in- 
formal judgments of the times : " To this gemote came Edwin and 
spake against his mother concerning some lands. The bishop 
asked who would answer for her. Thurcil the White said he would 
answer for her if he kuew the complaint, but that he was ignorant 
of it. Then three thanes of the gemote were showed where she 
lived, and rode to her and asked what dispute she had about the 
land for which her son was impleading her. She said that she had no 
land that belonged to him, and was angry with her son. So she 
called Lleofleda her kinswoman, the wife of Thurcil the "White, and 
before the thanes spake thus : Here sits Lleofleda my kinswoman. 
I give thee both my lands, my gold, and my clothes, and all that I 
have after my life. Then said she to the thanes, Do thane-like, and 
tell well to the gemote before all good men what I have said, and 
tell them to whom I have given my lands and my goods, but to my 
son nothing ; and pray them to be witnesses of this. And they did 
so, and rode to the gemote, and told all the good men there what 
she had said to them. Then stood up Thurcil the White in that 
gemote, and prayed all the thanes to give to his wife all the lands 
which her relation had given her. And they did so, and Thurcil 
the White rode to St. Ethelbert's church by all the folk's leave 
and witness, and left it to be set down in our Christ's book." The 
decision of the shire gemote or county court was irreversible, un- 
less by the great council of the kingdom. Appeal from it was not 
permitted even to the king. Persons, such as slaves, who were not 
law worthy — that is, capable of bringing suits at law — or who could 
not obtain a hearing in their county court, might lay their cause 
before the king; but even Edgar, the most powerful of the Saxon 



134 ANGLO-SAXON SYSTEM OF LOCAL SOYEKEIGNTIES. 

monarchs, found it necessary to proclaim by the following ordinance 
that he would hear none but the causes that legitimately might be 
brought before the throne : " Now this is the secular ordinance 
which I will that it be held. This then is just what I will; that 
every man be worthy of folk-right, as well poor as rich ; and that 
righteous dooms be judged to him; and let there be that remission 
in the lot as may be becoming before God and tolerable before 
the world. And let no man apply to the king in any suit unless he 
at home may not be law worthy or cannot obtain law. If the law 
itself be too heavy, let him seek a mitigation of it from the king ; 
and for any Jo^-worthy crime let no man forfeit more than his 
wer." Bot, in the glossary, signifies amends, atonement, compensa- 
tion, and emancipation. A man's wer is the estimated value of his 
life — every man's life, among the Saxons, being estimated at a cer- 
tain money value, according to his rank. 

. Such was the judicial system of our Anglo-Saxon forefathers, 
and the character of local sovereignty which attached to the assem- 
blies of the people in their various organizations. Evidently courts 
like these must often have been forced, from ignorance of law, to 
make the law in a particular case : and it is also to be kept in mind that 
they were courts of voluntary jurisdiction. " All transactions by 
which property might be acquired or lost, the purchase and sale of 
land, and the payment of money, were effected in the assemblies of 
the hundred. Here charters and deeds were produced and read, or, 
if they had been lost, they were established and confirmed." The shire 
court possessed the same jurisdiction as that of the hundred, and (per- 
haps) an appellate power in addition. The precedents of each court 
would be remembered afterward on like occasions, and hence local 
customs would grow up at variance with established customs in the 
neighboring shires. Many such customs survive the Conquest, and 
continue to the present day, an irrefutable proof of local sovereignty 
among the Saxon people. 3 

The general legislation of the Anglo-Saxon kingdom after the 
union of the crowns was done by the "Witena-gemote, or council 
of the wise. It was composed of the archbishops, bishops, ab- 
bots, subject kings, earls, and thanes ; and, as Prof. Lappenberg 
declares, " there is no reason extant for doubting that every thane 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 135 

had the right of appearing and voting in the witena-gemote, not 
only of his shire, but of the kingdom." The powers of this impe- 
rial council, according to Kemble, were as follows : 

1. They had a right to consider every public act which could 
be authorized or done by the king. 

2. They deliberated upon new laws which were to be added to 
the existing folk- right, and which were then promulgated by the 
joint authority of the king and the gemote. 

3. They made alliances and treaties of peace. 

4. On them devolved the duty of electing the king. 

5. They had the right to depose a king whose government 
was not for the benefit of the people. 

6. They, conjointly with the king, appointed prelates to vacant 
sees. 

7. They regulated ecclesiastical affairs. 

8. They levied taxes for the public service. 

9. They provided for defence, by raising forces for land and sea. 

10. They had the power of recommending and assenting to 
grants of land. 

11. They were empowered to pronounce the lands of criminals 
and intestates forfeit to the crown. 

12. They were in certain cases a supreme court of judicature 
both in criminal and civil matters. 

Yet, with all these weighty powers, the witena-gemote was 
limited in its authority, says Sir Francis Palgrave, " by the privi- 
leges of the different states composing the Anglo-Saxon empire ; 
and which dominions, as I have often remarked, had never amal- 
gamated into one kingdom. Kent, for instance, under the victo- 
rious Athelstane, had lost all the appearance of an independent state. 
But when he had made a law, by the assent of the Witan of Wes- 
sex, which, according to Lappenberg, was the great council of the 
united Saxon states), he could not impose it upon the men of 
Kent without their concurrence. He transmitted the enactment 
to them, and they then accepted the proposition by an address 
which they returned to their sovereign. I can quote the very 
words of such a document : 

" ' Beloved lord, thy bishops of Kent, and all Kentshire alder- 



136 ANGLO-SAXON SYSTEM OF LOCAL SOVEKEIGNTCES. 

men, thanes, and churls, return thanks to thee for the directions 
which thou hast given us concerning the conservancy of the peace, 
for great is the benefit which results to all of us, both poor and 
rich, thereby.' 

k< They then state the several articles or chapters of the statute, 
being ten in number, seriatim, and signify the manner in which 
they have received and modified the same. Grateful for the legis- 
lation thus bestowed upon them, the Kentishmen speak with thank- 
fulness and humility ; yet the form of the proceeding implies that 
their assent, so asked, might have been refused. In proportion as the 
sovereign gained in prerogative, the powers of the wifcena-gemote of 
Wessex, the predominant kingdom, would gradually gain strength 
also. The minor states annexed to Wessex would tacitly submit 
to be bound by its legislation, and, from the reign of Edgar, the 
lesser authorities seem in most cases to have been merged in the 
three leading states or territories of Wessex, Mercia, and Dane- 
laghe. Mercia clearly maintained its independence ; Northumbria 
equally so. East Anglia seems to have been sometimes considered 
as annexed to Mercia, sometimes as constituting a separate state, 
and sometimes as classing with Danish Northumbria. The laws 
which Edgar enacted at the request or with the assent of the Witan 
of Wessex were to be implicitly observed by his own immediate 
subjects. As to the others, they were to be adopted according to 
the model enacted by the assembly. The laws were transmitted 
to the earls by writ : it is most probable that they were usually re- 
ceived without hesitation, yet there was no absolute coercive power 
in the crown of Wessex ; and it was not until the reign of Canute 
that the Mercians received King Edgar's laws." 

Thus we have traced the political organization of the Saxon 
empire, and from the hundred to the witena-gemote, we have 
discovered everywhere the principle of local self-control, while in 
the constitution of the united Saxon states, state sovereignty is 
manifestly seen to be the basis of their union. Though under one king, 
elected from the royal family by the joint suffrages of the freemen 
of all the kingdom, yet the witena-gemotes of the respective king- 
doms had an absolute power of rejecting the decrees of the great 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 137 

national witena-gemote of Wessex, and no power of coercing states 
was claimed for the crown. 

But even before the conquest by the Norman, it is evident 
from the quotation given above from Palgrave, that the genuine 
spirit of the Saxon system had already fallen into decay. Of the 
original eight kingdoms, only three retained the vigorous vitality 
of independence. One still maintained a sickly struggle, which 
could hardly be deemed successful, and the remaining four had 
either voluutarily united with the more powerful states, or at best 
presented but a caput mortuum of their original defiant independence. 
It is also to be observed that the centralizing influences of the sta- 
tionary monarchy were sapping the foundations of the Saxon insti- 
tutions. As the royal prerogative gained in power, the king's original 
dominion of Wessex gained a preponderating influence, to the dis- 
paragement of her coequal sister states. The king was known 
as the king of Wessex, and the witena-gemote of the united Sax- 
on states came to be called the Witan of Wessex. Hence, though 
their local liberties were still untouched by king or witan, the 
great body of the Saxons had become accustomed to forget the 
primitive idea of the sovereign independence of their several states, 
and to the conception of a royal central power, of which the states 
were merely subjects and dependants. In other words, the Saxon 
principle of local sovereignty had been insidiously undermined, 
and the imperial principle of absolute and centralized authority was 
gradually but surely gaining ground. The notion of imperial cen- 
tralism once entertained, it mattered little who should be the ty- 
rant. Two claimants, one a Norman, one a Saxon, had a contest 
for the crown, and when the sun set on the bloody fic4d of Hast- 
ings, casting his last rays on the victorious banners of the Norman 
conqueror, the crumbling fabric of the Anglo-Saxon system fell 
before his feet. The men who had already sacrificed their inde- 
pendence to a Saxon, made no long defence against the Norman. 
One fierce, bloody battle, and the sun of Anglo-Saxon freedom set, 
to be succeeded by the Egyptian darkness of the feudal system. 
Thus a strife of centuries was laid up for the English people ; and 
instead of working out their own free system through continuous 
and glorious spontaneous developments, by the assistance of enlight- 



138 ANGLO-SAXON SYSTEM OE LOCAL SOVEREIGNTIES. 

ened Christianity and increased knowledge, they were forced to rise 
by slow steps, from a state of bondage, through a din of never-ceas- 
ing battle, to their ancient heritage of freedom. 



NOTES. 

1. Probably the best illustration of the local character of the. subordinate 
Anglo-Saxon institutions is to be found in the United States. 

I have thus given a very general outline of the more important Anglo-Saxon 
institutions. To notice the minuter variations, special provisions, and occa- 
sional changes, would lead me into too wide a discussion, and would not aid the 
purposes of so elementary a work as this: enough has been said, however, to 
indicate those of our own legal ideas and forms which have a Saxon origin. 

Prominent among these is that most important, and to us sacred princi- 
ple of local self-government. This element lay at the foundation of the whole 
Saxon' polity. It has been preserved in the English shires and ancient muni- 
cipal corporations or boroughs, with their immemorial privileges. In many of 
the American States it is guarded with even more jealousy than in the mother 
country. The New England and New York divisions of towns, each with its 
own officers and stated convocations of citizens, and of counties, each with a 
local representative assembly legislating for much that concerns the welfare of 
the district, and a court possessing a jurisdiction co-extensive with the territorial 
limits, embody with much simplicity and purity the essential idea of the Saxon 
commonwealth." — Pomeroy's Municipal Lav;, p. 240, 241. 

2. Few persons have an adequate conception of the degree to which the 
principle of local self-government is carried in England at the present day. 
The following extract, therefore, will be useful : 

" The principle of local self-government which exists in England has doubt- 
less exercised very great influence in the production of the freedom enjoyed 
under the Constitution. It is not intended to make an attempt to trace that in- 
fluence through the gradual advance of the institutions, but only to suggest some 
facts without which the full extent of the liberty and power possessed by the 
people cannot be fully appreciated. The nature of the Anglo-Saxon courts and 
motes was favorable to self-exertion and self-reliance on the part of the people ; 
but at a later period the chartered boroughs stand out conspicuously as institu- 
tions imbued with the spirit of freedom, and at the same time furnished with 
power to advance and defend it. These fought out their own independence 
from their feudal lords, and became the seats of self-government, on principles 
opposed to arbitrary or centralized power. The burgesses, with the mayor or 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. 139 

portreeve and aldermen as their executive officers, elected by them, regulated 
the affairs of their boroughs, in trade and police, independently of any direct 
supervision on the part of the crown or its officers, and without any appeal on 
the part of the inhabitants except through the courts of law, when cases arose 
of an illegal character. The tendency of these institutions was republican or 
democratic, rather than monarchical ; and the election of members to the House 
of Commons being vested in the boroughs, they returned to Parliament, for the 
most part, those patriots by whom the battle of the Constitution was fought. 
Charles II. made an attempt to get the boroughs, returning members to Parlia- 
ment, under the influence of the crown, by an attack upon their ancient charters, 
and by forcing or persuading the burgesses to accept new charters ; but he did 
not disturb their municipal authority. That has now been regulated and brought 
under one system by the act to provide for the regulation of the municipal 
corporations in England and Wales. It vests in the inhabitant householders 
rated to the relief of the poor, the election of burgesses, from whom the mayor 
and alderman are elected. The mayor becomes a justice of the peace, and re- 
turning officer of the borough at elections of members of Parliament ; and the 
mayor, aldermen, and burgesses are the council of the borough, in whom, or a 
majority in case of division, all authority is vested. They are empowered to 
make rates on the inhabitants for watching, lighting, and paving the borough, to 
appoint constables, to make by-laws, and, in general, to regulate the municipal 
affairs of the borough ; and all without the control or supervision (except in the 
disposal of their property) of any other central authority than the courts of law 
and equity. 

" The affairs of the counties are, in like manner, intrusted to the management 
of their principal inhabitants. The magistrates appointed by the crown, through 
the medium of the lord-lieutenant, and consisting of the principal landowners 
of the county, regulate the county affairs by a system of self-government. 
Assembled in their court of quarter sessions, they have jurisdiction to try small 
felonies, and to decide appeals from the several parishes of the county, in regard 
to rates and assessments for the relief of and the settlement of the poor. They 
regulate, in sessions or at county boards, the construction and repair of bridges, 
public roads, shire halls, prisons, and lunatic asylums ; and they superintend the 
apprehension, conveyance, and prosecution of criminals, the expenses of wit- 
nesses, and of the county police. For these, in quarter sessions, they make county 
rates on the freeholders. These important duties are discharged by persons 
resident within the counties, and who are necessarily the most considerable con- 
tributors to the rates ; and over whose acts there is no other central control than 
the courts of law and equity, when cases arise in which the legality of their acts 
is questioned. 

" The several parishes of the kingdom exercise self-government in parochial 
affairs, by the election, from the inhabitants, of churchwardens and overseers, 
who administer the laws for the relief of the poor, and of boards of parishion- 



140 ANGLO-SAXON SYSTEM OF LOCAL SOVEKEIGNTIES. 

ers, who discharge the various duties of the acts for the repair of the highways 
and the sewers, and for the preservation of health. The magnitude of the funds 
raised and distributed for the relief of the poor, throughout the kingdom, and 
the effect of their distribution on the public prosperity, made it necessary to 
adopt a uniform system of management and relief ; and therefore the functions 
of the parochial boards for relief of the poor are exercised under the superin- 
tendence of a supreme poor-law board, appointed by the crown, but responsible 
to Parliament. Its president is usually in the cabinet, and a member of the House 
of Commons. There is also a supreme board of health, but with these excep- 
tions, the administration of the local affairs of each division and subdivision of 
the kingdom is vested in its inhabitants, with an authority controlled only by 
the law and the courts of justice. — Rowland's Manual of the English Constitu- 
tion, p. 570-5 / 72." 

3. The following, from Blackstone, will serve to show the influence of the 
Saxon courts in establishing the present local customs of England : 

" The second branch of the unwritten laws of England are particular customs, 
or laws which affect only the inhabitants of particular districts. 

" These particular customs, or some of them, are without doubt the remains 
of that multitude of local customs before mentioned, out of which the common 
law, as it now stands, was collected at first by king Alfred, and afterward by 
King Edgar and Edward the Confessor ; each district mutually sacrificing some 
of its own special usages, in order that the whole kingdom might enjoy the 
benefit of one uniform and universal system of laws. But, for reasons that have 
been now long forgotten, particular counties, cities, towns, manors, and lord- 
ships, were very early indulged with the privilege of abiding by their own 
customs, in contradistinction to the rest of the nation at large : which privilege 
is confirmed to them by several acts of Parliament. 

" Such is the custom of gavelkind in Kent and some other parts of the king- 
dom (though perhaps it was also general till the Norman conquest), which 
ordains, among other things, that not the eldest son only of the father shall 
succeed to his inheritance, but all the sons alike ; and that, though the ancestor 
be attainted and hanged, yet the heir shall succeed to his estate, without any 
escheat to the lord. Such is the custom that prevails in divers ancient boroughs, 
and therefore called borough-english, that the youngest son shall inherit the estate 
in preference to all his elder brothers. Such is the custom in other boroughs 
that a widow shall be entitled, for her dower, to all her husband's lands ; whereas 
at the common law she shall be endowed of one third part only. Such also are 
the special and particular customs of manors, of which every one has more or 
less, and which bind all the copyhold and customary tenants that hold of the 
said manors. — Such likewise is the custom of holding divers inferior courts, with 
power of trying causes, in cities and trading towns, the right of holding which, 
when no royal grant can be shown, depends entirely upon immemorial and 



ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES. l41 

established usage. Such, lastly, are many particular customs within the city of 
London, with regard to trade, apprentices, widows, orphans, and a variety of 
other matters. 

" All these are contrary to the general law of the land, and are good only by 
special usage; though the customs of London are also confirmed by act of 
Parliament." — Blackstone's Commentaries, i. 74, 75. 



CHAPTEK II. 

THE FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

ORIGIN OF THE FEUDAL SYSTEM NATURE OF THE FEUDAL TENURE OF LAND IN 

CONSIDERATION OF MILITARY SERVICE SOCAGE HOMAGE ALLEGIANCE 

AMOUNT OF SERVICE SCUTAGE RELIEFS — HERIOTS FINES ON ALIENATION 

ESCHEATS — AIDS — WARDSHIP MARRIAGE — CONVERSION OF ALLODIAL LANDS 

INTO FEUDAL TENURES SERFDOM — ESTABLISHMENT OF FEUDALISM IN ENGLAND. 

The Saxon and the feudal systems were exact antipodes. The 
former, as we have already shown, was one of independent local 
sovereignties in the hands of freemen. The latter was a rising 
series of consolidated military powers, reaching its climax in a 
central monarchy which tolerated not one freeman. 

The feudal system sprang up upon the continent of Europe, 
among the Grerman tribes of Normans, Franks, Burgundians, 
Visigoths, and Lombards, who swept down upon the falling Roman 
Empire, and divided its vast territories among themselves. It is not 
our purpose to give its history. It doubtless had its moving cause 
in the custom of the German warriors, which we have mentioned in 
the previous chapter, of joining themselves to military chiefs, whom 
for their martial glory they regarded with an almost superstitious 
reverence. In their invasions of the south, these chiefs in like 
manner united under various leaders, who on their conquest of the 
several provinces, became their kings. Here it was not long ere the 
civilization of the vanquished gained upon the victors, who without 
much difficulty adopted the religion and laws of the Empire. 
Under the teachings of the Christian priesthood — always forward in 
supporting kingly and imperial prerogative — the sovereigns and 
their subjects learned to look upon the royal office in a yet more 
lofty point of view. The ceremonies of the church in the anoint- 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 143 

ing and investiture of these barbarian princes made a strong im- 
pression on the warm imaginations of the newly converted North- 
men. Henceforth the king became to them God's representative 
in civil matters, as the priest was in the matters of the faith, and, 
next to God and holy church, they gave implicit submission to 
the anointed king, who was supposed to hold his office by divine 
appointment. Meanwhile, jurists learned in the law were not 
behind the priesthood in supporting and increasing the pretensions 
of the kings. They taught that these barbarian sovereigns were 
the successors of the Caesars, and that all the high prerogatives of 
the imperial crown were now legitimately vested in them. More- 
over, they had gained their title by conquest, and had consequently 
every right claimed by the emperors in subjugated territories. 
Hence the lands they had subdued were the king's individual prop- 
erty. This was a mighty cornerstone of the feudal system ; and 
upon this, with the other notion, that the king's right was a right 
divine, that is, a right of God, the whole tremendous fabric may be 
said to have been based. But though he was the absolute proprie- 
tor of all the lands within his territories, it was impossible on any 
system for a single man personally to enjoy so wide a domain. 
The lands of the kingdom were therefore distributed among the 
warriors who had followed him. Not that they thereby were 
invested with the ownership of these lands. The ownership 
{dominium directum) rested with the king. But they received the 
actual possession and profitable use of them (dominium utile). 
Thus the king was able to reward his faithful retainers, by making 
to them grants of land under the name of benefices. 

Under these beneficial grants we find the first historic traces 
of the feudal system. The benefice was not an absolute gift vest- 
ing the recipient with the ultimate ownership ; that still remained 
in the king, and the grant was liable to be revoked at any disloyal 
or hostile act of the beneficiary. In return for this gift to him 
from the monarch, the subject was bound to give the king, when 
called upon, his military service and aid, from time to time, as they 
should be required. Thus the favored subject entered into the 
possession of the land, and enjoyed all of its benefits as though he 
were the absolute owner : still, as he was not the absolute owner, he 



144 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWEE. 

was said, in the subsequent language of the feudal law, to hold the 
land of his sovereign ; and the method or relation by which he thus 
held was denominated a tenure, or holding. (Pom. p. 255). 

Sometimes the grant was for the life of the grantor ; but more 
generally for that of the grantee. At what time custom or agree- 
ment made the enjoyment of the property hereditary in the family 
of the grantee, we have no means of accurately ascertaining in any 
country. As late as the end of the sixth century, the lands which 
had been parcelled out returned in most European states to the 
prince, and were only continued to the family as an act of favor, 
and by a new gift ; although undoubtedly instances of hereditary 
tenure occurred even at this early date. 

Now a benefice {leneficium), or grant of land by a chief to his 
followers upon condition of military service, was called a fief, feud, 
fee, or feo (from feo, wages, and od, land), and it constituted the 
grantee a feudatory, or vassal of the chief or superior to whom he 
owed service in consideration of the land. The use of the land 
was his wages, which he earned for doing service to his master, the 
owner or grantor of the land. This, we repeat, is the cornerstone 
of the feudal system. It is the root from which all its peculiarities 
spring. 

Attempts have been made to deduce the feudal relations 
from other sources. It has been said that traces of it are to be 
found in the customs of the Germans and Saxons ; and the relation 
of chief and follower was no doubt the moving cause which led 
those hardy people to adopt the system so universally. But it is to 
be remembered that the companions of the chief cannot be likened 
to vassals, to whom, indeed, they bear a very faint resemblance ; 
and that, in their primitive abode, payment of any kind, and certain- 
ly in land, was altogether wanting. Some have imagined that the 
feudal relation is to be traced in the Roman connection of patrons 
and clients — a practice, among men of consequence and power, of 
taking under their protection inferior persons, who rendered in re- 
turn such services as were within their means, often paying money, 
and not unfrequently bequeathing property, to their patron. But 
no real resemblance exists between the two cases ; for here, again, in 
the Boman custom there is no holding of land in consideration of 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 145 

allegiance and service. The only case which resembles feudal ser- 
vice in the early history of Europe is to be found in the reign of 
Alexander Severus at the beginning of the third century, who set- 
tled some barbarous tribes along the Danube, making to them grants 
of land on the express condition of their serving him in wars 
against the neighboring tribes. 

This was a simple feudal tenure, arising out of circumstances 
identical with those out of which the feudal relation grew and be- 
came general two centuries later ; and on reflection it seems proba- 
bly the most natural form in which the custom of free companion- 
ship prevailing in the unsettled Grerman tribes could coalesce with 
the imperial power appropriated by their chiefs, on their establish- 
ment as settled rulers of the conquered Romans and provincials. 

When a chief, then, established himself and parcelled out the 
lands seized, the leading companions of the expedition shared some 
of the lands taken, on condition of allegiance and military service. 
When the feuds became hereditary and the favor of succeeding 
princes had increased the grants, the comites or counts possessing 
large tracts exercised great influence in the state. For the acqui- 
sition of feuds, when the tenures became hereditary, and perhaps 
even sooner, was attended with another operation. As the practice 
of renting land was unknown, whoever had more land given him 
than he could cultivate, whether a count or any inferior person, was 
obliged to make a similar grant to other persons, in return for which 
they were to do him service. Thus every one who had a consider- 
able estate given him, retained part for himself, and parcelled out 
the rest among inferiors, who rendered him the same service as he 
rendered to the chief or prince — following him in war when he fol- 
lowed the prince, assisting him in peace, and attending his courts. 
The practice of making these inferior grants of land was called 
sub-infeudation, and originally there was no limit to it. The 
smaller proprietors had of course fewer inferior vassals, or subfeuda- 
tories ; but, like the counts and other important vassals of the crown, 
they had the same courts and administration of justice over their 
vassals as the king himself over his tenants in capite, or tenants in 
chief. From this distribution of land among the crown's vassals, 
and by them among their dependants, arose the great power of the 
1 



146 FEUDAL SYSTEM OE CONSOLIDATED MILITARY POWER. 

feudal lords or barons ; for the allegiance of their feudatories to 
them was in theory as rigorous as their own to the sovereign ; and 
in practice it was much more effectual. The count or baron passed 
his whole time at home, surrounded by his followers, who also were 
the suitors or members of his courts where justice was administered, 
while the more distinguished among them were his companions in 
the chase and at his feasts. Occasionally the great lord might go 
to the sovereign's court, and in his wars he accompanied his armies ; 
but the constant occupation of his life was such as to maintain his 
power over his own vassals. 1 

It happened, however, that in every country overrun by the 
barbarians, a considerable portion of the land remained the property 
of the former inhabitants, and some part of it was granted out in 
absolute possession, without any direct obligation of service. This 
land was called allodial, and its holders allodists, or allodial propri- 
etors ; but its amount in every country underwent constant diminu- 
tion. This was principally owing to the disordered state of society, 
and the insecurity arising from thence and from foreign invasion, 
During many centuries there was continual commotion ; petty pri- 
vate wars were waged between the feudal lords ; there was no gene- 
rally acknowledged law and no respect for private property; and 
the allodial proprietors having incurred no obligation of service, and 
therefore having no title to protection from the sovereign and no 
laws from which to seek redress, were exposed to the perpetual 
rapacity of counts and other nobles. " The owners of the castles 
and fastnesses would sweep down upon these proprietors, ravage their 
possessions, and carry them off, to be ransomed at any exorbitant 
charges. The military tie of lord and vassal was the only barrier to 
these attacks, for while it imposed a duty of warlike service upon the 
vassal, it also afforded the protection of the lord." Hence many 
allodial proprietors surrendered their lands into the hands of some 
more powerful proprietor, to receive them back as feuds, with 
the condition of allegiance and service imposed upon them, but also 
with the duty of protection cast upon the lord. Even those lords 
themselves, owners of larger allotments, were frequently reduced by 
similar apprehensions to become vassals of the crown in respect of 
lands formerly held by them as allodial ; and to such an extent was 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 117 

this practice of infeudation carried, that in the tenth and eleventh 
centuries it appears that almost all the allodial possessions of 
France had been converted into feudal tenures held by vassals of 
superior lords ou the condition of military service. 

When the feudal relation had become established, it extended 
itself to various kinds of property, not in their nature the subject 
of such a conditional holding. Thus rents, tolls, pensions, tithes, and 
offices were made the subjects of feudal grant, and given on condi- 
tion of military service. Even perquisites of the priests for saying 
mass were sometimes seized by the barons, and held by them of the 
church, on the condition of giving their service in protecting it; 
and such spoils were shared by sub-infeudation among their fol- 
lowers. But some lands, and generally property in towns, were in 
England held for fixed payments, or for services not military ; and 
this was called socage, or free and certain service. 

Having now traced the establishment of the feudal relation of 
lord and vassal, we are next to examine the rights and duties which 
it constituted, and the important effects which it produced upon 
the structure of the government and the condition of society. 

The first duty of the vassal to the lord was allegiance. He did 
homage by uncovering his head and ungirding his sword, and kneel- 
ing before the lord, in whose hands he placed his own. In this at- 
titude he solemnly promised to become his man — homme (whence 
the word homage) ; and to serve him faithfully with life and limb 
in return for the land held of him. This ceremony generally was 
ended by his kissing the lord's cheek, and the lord kissing his mouth; 
and a remnant of this is retained in England at the coronation of the 
king, the peers all kneeling before the king uncovered, and then kiss- 
ing his cheek. The bishops still do homage to him for their tem- 
poral possessions, which return to the crown on the see being vacant, 
and are granted again to the successor. The homage, chiefly confined 
to military tenure, was performed to the lord in person. The oath 
of fidelity, or fealty, which belonged to all tenures, followed ; but 
the lord might receive it by proxy. 2 The investiture of the vassal 
in the land was that for which he owed allegiance, and the lord 
either gave actual possession on the spot, or delivered it over by 
symbols, as turf for a field, a stone for a house, and so forth. 



148 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

Allegiance comprehended the duty of attempting nothing 
against the lord, disclosing all information that might affect him, 
and not divulging his counsel when trusted by him. The vassal 
was also bound to side with him in war, and be a hostage for him 
if captured. But military service, to which was added suit service, 
or attendance on the lord's court, was the most important duty, and 
in most cases, perhaps at first in all, was the foundation of the tenure. 

Allegiance was at all times due, and continued always the same. 
Military service was originally coextensive with allegiance, and was 
due whenever the lord was attacked. Whether, if he waged offen- 
sive war, the same absolute right existed to the vassal's service, 
may be questioned. Caesar tells us that the ancient Germans volun- 
teered to accompany their chief on an expedition which he an- 
nounced at a general assembly, and that, having once promised, it 
was infamy not to perform. Probably, then, the barbarians, when 
they settled and granted out lands in feudal tenure, held assemblies 
where the expedition was resolved upon, and the lord had a right 
to service while it lasted. But by degrees this came to be regu- 
lated and limited, and the vassals became bound to serve only a 
given number of days, each according to the extent of his posses- 
sion. Thus, for a knight's fee (or land of the value of twenty 
pounds a year), forty days were due ; which in France was extended 
to sixty days. But in the course of time the extent of service came 
to be specified in the deed or charter by which the land was grant- 
ed. Men of sixty, women, priests, and public functionaries, were al- 
lowed to find substitutes. Sometimes the service was limited to 
the lord's territory; sometimes it was general and unrestricted. 
The non-performance incurred a forfeiture of the land to the 
lord, because it was a breach of the condition upon which the grant 
had been made. But afterward the practice grew up of commu- 
ting the service for a fine, which was called escuage, or scutage, and 
proved a source of revenue to the chief. 

But besides the service of war, other rights were possessed by 
the lord, some of them connected with the land, and arising from 
its having been originally his own altogether, and never wholly 
given to the vassal ; others acquired by usurpation upon the vassal 

As the land was at one time granted for life, when the lord gave 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 149 

it at a vassal's death to his heir, he exacted something in considera- 
tion of the favor. This was called a relief (from re, back, and le- 
vare, to raise), as if the land had fallen into the lord's hands, and 
was to be relieved out of them by payment of the fine ; or had fall- 
en down, as it were, and was to be raised up again. The amouut 
to be paid was probably at first quite arbitrary — as much as the 
lord chose to ask, and the vassal could afford to pay. Afterward 
it became fixed by custom, and even by law. The charter of 
Henry I., of England, enacted that reliefs in future should be rea- 
sonable, and Magna Charta fixed them at what was supposed to 
be one fourth of the yearly real value. In some countries, relief 
was also due on the death of the lord ; and at the present day, we 
find the remains of this, as well as the ordinary relief, in many 
manors in the North of England, where copyholders pay a fine, 
on the death both of the lord and of the tenant. It is most prob- 
able that this kind of relief, on the lord's death, originated in the 
remoter period, when the feud was granted wholly at pleasure, or 
at least, only during the grantor's life ; and when he died, the 
heir, not being bound to continue the grant during the vassal's life, 
required a consideration for remembering his ancestor's grant. He- 
riots, still known in some English manors, are probably another rem- 
nant of the temporary nature of the feud out of which reliefs 
arose. They are due on the tenant's decease, and consist of his 
best chattel. A valuable racehorse was some years ago claimed 
in Surrey as a heriot. The same custom prevailed in Italy 
and France as early as the eleventh century; in England, at least 
two centuries before. The custom with regard to reliefs differed in 
different countries. Thus, in most parts of France, they were not 
due at all on direct, but only on collateral succession. This, how- 
ever, may have been a limitation of late introduction, when the 
right of inheritance was established. Originally, they were prob- 
ably due on all descents alike. 

The right to alienate the feud was of comparatively late intro- 
duction ; for the fealty and service of the vassal were properly per- 
sonal, and could not be transferred. Indeed, the original relation 
of lord and tenant was so strict, that neither party could dissolve it 
at pleasure. The lord's consent was necessary to a change of ten- 



150 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

ant ; the tenant's to a change of lord ; expressed by a form called 
his attornment, which continued to be required in England until the 
eighteenth century. At a much earlier period, however, the lord had 
become accustomed, in all feudal states, to permit alienation by the 
tenant, upon payment of a sum of money, and the person to whom 
the transfer was made became the lord's vassal, and did homage 
upon admission as tenant. 

When feuds became hereditary, they descended either according 
to the order of succession pointed out in the grant, or according to 
some general law of succession prevailing in the state at large, or 
confined to the particular district. It was not till late in the his- 
tory of most nations that the right to dispose of property by will 
was introduced, and it may be asserted that while the feudal system 
remained in full force, no such power was enjoyed generally in any 
part of Europe. When it was given anywhere, it at first extended 
only to a part of the land, the rest being still required to go in a 
particular line pointed out by the original terms of the grant, or 
the general law of the state, or the local law of the district. But 
while the feudal system remained entire, the death of the vassal 
without heirs, or without such heirs as were designated in the grant, 
caused the fief to return, fall, or escheat, as it was called, to the 
lord. The word signifies a casualty, or falling in consequence of 
an accident. But want of heirs was not the only cause of forfeit- 
ure. If the vassal committed any act inconsistent with his fealty, 
the fief returned to the lord ; and refinements were introduced, by 
which many things were held to be constructive rebellion, or con- 
tempt of the lord's authority. Thus, encroaching on his share of 
the land, whether on the waste not parcelled out, or on the lord's 
private property, as well that of which he had the beneficial owner- 
ship as that of which he had the feudal dominion, was termed pur- 
presture or pourprtsion, and forfeited the feud to the lord; though in 
England this term has for ages been confined to encroachments upon 
the crown's rights. Thus, too, disclaiming the lord's right and 
the tenure under him was a cause of forfeiture. And in general 
alienating without license, and even making certain alterations upon 
the form and disposition of the land, were causes of forfeiture. 

But besides these rights and perquisites which arose out of the 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWEB. 151 

relation between the lord of the soil and him who had only the en- 
joyment, and that limited, of its fruits, there were others which 
grew out of the vassal's allegiance and dependence upon the superior. 

Of these, aids were the chief. They were sums, like a tax or 
contribution, levied upon all the vassals, to defray expenses of the 
lord on certain extraordinary occasions — such as a pilgrimage to the 
Holy Land ; the costs of his own relief to an over lord ; the mak- 
ing his eldest son a knight ; the portioning his eldest daughter ; 
and his ransom, if taken in battle. 

These three last are alone permitted by Magna Charta ; and by 
the laws of France and other Continental monarchies, ward or 
wardship and marriage were not so universally established as the 
aids of which we have just been speaking. But in England they 
existed, and to an oppressive extent, as they also did in Germany 
and in Normandy. On the ground of training the infant vassal 
to arms after his father's death, and because he lost his service 
during his minority, the lord took possession of his estate until he 
became of age ; and an abuse of a vexatious kind soon crept in — 
the lord bestowing the guardianship and possession of the land, 
upon strangers, from favor or for money. This was called, in Eng- 
lish law, guardianship in chivalry, and was only abolished first dur- 
ing the Commonwealth, and then by a perpetual act at the Restor- 
ation, after having been the source of extreme oppression down to 
that late period. 

Marriage (tnaritagium) was the right to marry a ward, and re- 
ceive a price for the match. The custom was still more rigorous 
in Jerusalem, where the Crusaders introduced the feudal system ; 
for there, maiden or widow, in order that there might never be 
wanting a male vassal to perform service, was compelled to take one 
of three husbands presented to her by the lord, unless she was 
sixty years old, and resolved to die single. In some parts of Ger- 
many and France, and in Scotland till the eleventh century, it is 
certain that a custom more outrageous still prevailed, the lord 
having a right to enjoy the person of the vassal's bride. This, 
in France, was called droit du seigneur, and in Scotland the fine 
paid for it was termed woman } s mark ; but it is doubtful whether it 
existed in respect of the vassals who held by military service, or 



152 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

was only incident to other tenures of a baser kind. Of these it is 
now necessary to speak. 

We have hitherto confined our attention to those persons who, 
being soldiers, companions in arms of the chief, freemen and war- 
riors, shared the fruits of the conquests made, and obtained land 
either freely and unconditionally, or on the condition of certain 
allegiance and service — the holders of the former or allodial land 
gradually becoming holders by feudal tenure. There existed, how- 
ever, in all the provinces overrun by the northern nations, a twofold 
division of the inhabitants, some being freemen and some being slaves. 
In all parts of the Roman Empire the legal right and the practice 
was established of holding persons in absolute slavery ; and that 
the barbarians found the people in this state is plain, among other 
things, from the laws of the Burgundians, which mention their 
having, on their settlement in France, seized two thirds of the land, 
and one third of the slaves or serfs. 

But the northern nations had also slavery as a part of their 
own customs, although their domestic slaves were in an easy con- 
dition, and did not much differ in their circumstances from the 
other poorer classes of the community. Captives made in war ; 
persons who sold themselves, or who were sold by their parents 
from poverty ; convicts condemned to pay fines, and made slaves 
on default ; gamesters who staked their personal liberty upon the 
issue of play, to which the Germans were passionately addicted — 
all these classes increased the number of slaves among those rude 
nations. Upon conquering any district, they sometimes reduced all 
the people to slavery, except such as could ransom themselves. 
Subsequently, revolt or other acts of violence extended the num- 
bers of the slaves. Another reason operated in the same direction. 
The violence of the early feudal times, and the consequent dangers 
in which poor men were placed, made it highly desirable to obtain 
protection from the more powerful members of the community. 
Personal protections were obtained from these lords, called com- 
mendations, resembling the patronage of the Romans, or the relation 
in which the upper classes stood toward their clients. For this 
protection, payments in money were made, called salvamenta, or sal- 
vages, and many who could pay nothing, became serfs or slaves to 



FEUDAL SYSTEM OF CONSOLIDATED MLLITARY POWER. 153 

such as would not be content with mere allegiance or with occasional 
service. Allodial proprietors used at first to obtain commendations, 
as they had no law to protect them, until by degrees the tenure of 
their land became feudal, as we have already seen. Men who had 
no land were deprived of this resource, and very often became serfs. 
Many, too, in those superstitious ages, parted with their liberty to 
monasteries and churches in return for their prayers and masses, 
together with some small share of their temporal possessions. It 
thus happened that, as all the land became feudal, and the maxim 
of the law arose, "Nulle terre satis seigneur''' 1 — "No land without a 
lord" — so almost every one was either a vassal in respect of his 
land, or a serf in respect of his person, and the common people 
came to be almost universally in a state of slavery. 

But land in those countries constituted the whole, or nearly the 
whole, wealth of the community. It was in some sort, too, the 
currency in which services of every kind were paid. A proprietor 
desiring to retain the services of any one, gave him a rent issuing 
out of his land ; and this constituted him a vassal ; for it was by 
a refinement of the feudal law reckoned (not feudum, but) quasi 
feudum — a kind of fief, or an improper fief — a fee or feud of land. 
In order to obtain inferior services, or to support serfs, they were 
settled on small portions of land in the neighborhood of the lord's 
residence, and these allotments were entirely held at will by the 
serfs, whom the lord could at any time dispossess. Thus, to obtain 
land, needy freemen became serfs — another source of domestic 
slavery. But this kind of contract had very important conse- 
quences ; for as the servitude of these voluntary slaves only could 
last as long as they held the land, they and their children came no 
longer to be regarded as tenants at will, and liable to be dispos- 
sessed ; and so the slaves, who had no rights at all, but were merely 
settled on their owner's land as the best way of supporting them 
and securing their services, came gradually to be considered like 
the others, and were allowed first to retain their allotments for life, 
afterward to transmit them to their children, and finally to their 
collateral heirs. No uniform rule, however, was established as to 
these rights or permissions. Different lords gave different rights 
and different courses of succession ; different rights of alienation 
7* 



154 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 

by conveyance or by will were established in different districts or 
lordships, and different sums were paid to the lord as fines upon 
descent or alienation. One thing, however, was common originally 
to the whole — some service was exacted by the lord, and this ser- 
vice was of an inferior or base kind ; never the military service by 
which free land was held by the freemen, vassals of the lord. These 
were the freeholders of each manor or lordship, owed suit service 
to the freeholders' court, and were bound to follow the lord in war. 
But the serfs, even when established in their rights of property, 
only attended customary courts of an inferior kind, and served the 
lord in a humbler way. 

Thus, throughout the whole of what was once the Empire of 
the West, the feudal system was effectually established ; and thus, 
from the degraded serf, who eked a miserable sustenance from 
the allotment made him by the holder of a knight's fee, who, per- 
haps, was vassal to a baron holding from some count, who was 
retainer to a duke, who was tenant in capite, or the immediate vas- 
sal of the king himself, until we reach the royal head of this vast 
system of servitude, we find not one freeman. True, the terms of 
the relationship were made to seem sufficiently inviting. Nom- 
inally " the feudal relation of lord and vassal was one of mutual 
support and assistance. Heavy burdens were laid upon the one, 
but they demanded corresponding duties and obligations from the 
other. If the vassal was bound to furnish an uncertain amount of 
personal military attendance to his superior, in his wars, public 
or private, and in later times to contribute much money, the lord 
was in turn obliged to warrant and secure his dependant in the 
quiet possession of his land, and to defend him against all enemies." 
No language, however, can conceal the fact that the whole system 
was one of petty despotisms, rising to an irresponsible and central 
military head ; that it was emphatically a system of brute force ; 
that it gave no defence from lawlessness but by submission to a 
lawless tyranny; that it reduced the poor man to a state of slavery, 
and that the best it could make any man was the bound vassal of a 
higher lord than he. 

Such was the substitute for the free Saxon institutions, brought 
to England by the Norman conqueror, and we repeat what we 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY TOWER. 155 

asserted in the first page of the present chapter — that it was a rising 
series of consolidated military powers, reaching its climax in a central 
monarchy which tolerated not one true freeman. But fortunately for 
the liberties of England, "William made himself too powerful. The 
royal power in France had been reduced almost into contempt by 
the immense power of the immediate feudatories of the crown. 
The counts and dukes — though nominally vassals of the king — 
holding enormous territories, and, by the practice of subin- 
feudation, having multitudes of military followers, had become in 
reality all but independent sovereigns. • William himself, as duke 
of Normandy, had been too powerful to pay much respect to his 
French suzerain ; but in distributing the lands of his defeated 
Saxon subjects among the Norman knights whose swords had won 
his crown, he saw to it that none should be so powerful as to dare, 
in any case, contest the royal will. He thus made tyranny over 
the barons possible whenever he or his successors should desire to 
play the tyrant. The result could not be doubtful. Tyranny, 
when possible, is always certain. He had made the individual 
barons too weak individually to make an issue with the king. 
When, therefore, royal tyranny became intolerable, the resistance 
to it necessarily assumed the best form of resistance to a tyranny 
— that of a united and determined coalition. Better still, it made 
the Saxon commons an important element in the baronial contests 
with the crown ; and hence the charters, wrung from kings in 
England by the hands of nobles, have invariably been charters of 
the people's rights much more than of baronial privileges. Thus, 
through generation after generation, the united lords and commons, 
making common cause for rights and liberties dear to them both, 
have gradually won back to the people from the royal power what, 
but for the insatiable rapacity and keen sagacity of William, they 
might never have united to achieve. How the first great step of 
this mighty march was made we shall proceed to tell hereafter. 3 



156 FEUDAL SYSTEM OF CONSOLIDATED MILITAET POWER. 



NOTES. 

1. Guizot on the Social Working of the Feudal System. — "Let us investigate 
this society in itself, and see what part it has played in the history of civil- 
ization. First of all, let us take feudalism in its most simple, primitive, and 
fundamental element : let us consider a single possessor of a fief in his domain, 
and let us see what will become of all those who form the little society around 
him. 

" He establishes himself upon an isolated and elevated spot, which he takes 
care to render safe and strong: there he constructs what he will call his castle. 
With whom does he establish himself? With his wife and children ; perhaps 
some freemen who have not become proprietors, attach themselves to his per- 
son, and continue to live with him at his table. These are the inhabitants of 
the interior of the castle. Around and at its foot, a little population of colonists 
and serfs gather together, who cultivate the domains of the possessor of the 
fief. In the centre of this lower population, religion plants a church ; it brings 
hither a priest. In the early period of the feudal system, this priest was com- 
monly at the same time the chaplain of the castle and the pastor of the village; 
by and by these two characters separated ; the village had its own pastor, who 
lived there beside his church. This, then was the elementary feudal society, 
the feudal molecule, so to speak. It is this element that we have first of all to 
examine. We will demand of it the double question which should be asked of 
all our facts : What has resulted from it in favor of the development, 1, of man 
himself — 2, of society? 

" We are perfectly justified in addressing this double question to the little 
society which I have just described, and in placing faith in its replies ; for it was 
the type and faithful image of the entire feudal society. The lord, the people 
on his domains, and the priest : such is feudalism upon the great as well as the 
small scale, when we have taken from it royalty and the towns, which are dis- 
tinct and foreign elements. 

" The first fact that strikes us in contemplating this little society, is the pro- 
digious importance which the possessor of the fief must have had, both in his 
own eyes, and in the eyes of those who surrounded him. The sentiment of 
personality, of individual liberty, predominated in the barbaric life. But here 
it was wholly different : it was no longer only the liberty of the man, of the 
warrior ; it was the importance of the proprietor, of the head of the family, of 
the master, that came to be considered. From this consideration an impression 
of immense snperiority must have resulted ; a superiority quite peculiar, and 
very different from everything that we meet with in the career of other civili- 
zations. I will give the proof of this. I take in the ancient world some great 
aristocratical position, a Roman patrician for instance. Like the feudal lord, the 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 157 

Roman patrician was head of a family, master, superior. He was, moreover, 
the religious magistrate, the pontiff in the interior of his family. Now his im- 
portance as a religious magistrate came to him from without ; it was not a purely 
personal and individual importance ; he received it from on high ; he was the 
delegate of the Divinity ; the interpreter of the religious creed. The Roman 
patrician was, besides, the member of a corporation which lived united on the 
same spot, a member of the senate ; this again was an importance which came 
to him from without, from his corporation, a received, a borrowed importance. 
The greatness of the ancient aristocrats, associated as it was with a religious 
and political character, belonged to the situation, to the corporation in general, 
rather than to the individual. That of the possessor of the fief was purely in- 
dividual ; it was not derived from any one; all his rights, all his power came to 
him from himself. He was not a religious magistrate ; he took no part in a 
senate ; it was in his person that all his importance resided ; all that he was, he 
was of himself, and in his own name. "What a mighty influence must such a 
situation have exerted on its occupant ! What individual haughtiness, what pro- 
digious pride — let us say the word — what insolence must have arisen in his soul ! 
Above himself there was no superior of whom he was the representative or in- 
terpreter : there was no equal near him ; no powerful and general law which 
weighed upon him ; no external rule which influenced his will ; he knew no curb 
but the limits of his strength and the presence of danger. Such was the neces- 
sary moral result of this situation upon the character of man. 

"I now proceed to a second consequence, mighty also, and too little noticed, 
namely, the particular turn taken by the feudal family spirit. 

" Let us cast a glance over the various family systems. Take, first of all, the 
patriarchal system of which the Bible and oriental records offer the model. The 
family was very numerous, it was a tribe. The chief, the patriarch, lived there- 
in in common with his children, his near relations, the various generations which 
united themselves around him, all his kindred, all his servants ; and not only 
did he live with them all, but he had the same interests, the same occupations, 
and he led the same life. Was not this the condition of Abraham, of the Patri- 
archs, and of the chiefs of the Arab tribes who still reproduce the image of the 
patriarchal life 9 

" Another family system presents itself, namely, the clan, a petty society, whose 
type we must seek for in Scotland or Ireland. Through this system, probably, a 
large portion of the European family has passed. This is no longer the patri- 
archal family. There is here a great difference between the situation of the 
chief and that of the rest of the population. They did not lead the same life. 
The greater portion tilled and served, the chief was idle and warlike. But they 
had a common origin: they all bore the same name, and their relations of 
kindred, ancient traditions, the same recollections, the same affections, estab- 
lished a moral tie, a sort of equality between all the members of the clan. 

"These are the two principal types of the family society presented by history. 
But have we here the feudal family ? Obviously not. It seems at first that the 



158 FEUDAL SYSTEM OF CONSOLIDATED MILLTAEY POWEE. 

feudal family bears some relation to the clan ; but the difference is much greater 
than the resemblance. The population which surrounded the possessor of the 
fief were totally unconnected with him ; they did not bear his name : between 
them and him there was no kindred, no bond, moral or historical. Neither did 
it cesemble the patriarchal family. The possessor of the fief led not the same 
life, nor did he engage in the same occupations with those who surrounded him ; 
he was an idler and a warrior, while the others were laborers. The feudal family 
was not numerous ; it was not a tribe ; it reduced itself to the family, properly 
so called, namely, to the wife and children ; it lived separated from the rest of 
the population, shut up in the castle. The colonist and serfs made no part of it : 
the origin of the members of this society was different, the inequality of their 
situation immense. Five or six individuals in a situation at once superior to 
and estranged from the rest of the society — that was the feudal family. It was 
of course invested with a peculiar character. It was narrow, concentrated, and 
constantly called upon to defend itself against, to distrust, and at least to isolate 
itself from, even its retainers." 

* * * ****** 

" No doubt, after a certain time, some moral relations, some habits of affection, 
became' contracted between the colonists and the possessor of the fief. But this 
happened in spite of their relative position, and not by reason of its influence. 
Considered in itself, the position was radically wrong. There was nothing mor- 
ally in common between the possessor of the fief and the colonists ; they con- 
stituted part of his domain ; they were his property ; and under this name prop- 
erty were included all the rights which, in the present day, are called the rights 
of public sovereignty, as well as the rights of private property, the right of im- 
posing laws, of taxing, and of punishing, as well as that of disposing of and selling. 
As far as it is possible that such should be the ease where men are in presence of 
men, between the lord and the cultivators of his lands there existed no rights, 
no guarantees, no society. 

" Hence I conceive the truly prodigious and invincible hatred with which the 
people at all times have regarded the feudal system, its recollections, its very 
name. It is not a ease without example for men to have submitted to oppres- 
sive despotisms, and to have become accustomed to them ; nay, to have wil- 
lingly accepted them. Theocratic and monarchical despotisms have more than 
once obtained the consent, almost the affections, of the population subjected to 
them. But feudal despotism has always been repulsive and odious; it has op- 
pressed the destinies, but never reigned over the souls of men. The reason is 
that in theocracy and monarchy, power is exercised in virtue of certain words 
which are common to the master and to the subject; it is the representative, the 
minister of another power superior to all human power; it speaks and acts in the 
name of the Divinity, or of a general idea, and not in the name of man himself, 
of man alone. Feudal despotism was altogether different ; it was the power of 
the individual over the individual ; the dominion of the personal and capricious 
will of a man. This is, perhaps, the only tyranny of which, to his eternal honor, 



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 159 

man will never willingly accept. Whenever, in his master, he beholds a mere 
man, from the moment that the will which oppresses him appears a merely 
human and individual will like his own, he becomes indignant, and supports 
the yoke wrathfully. Such was the true and distinguishing character of feudal 
power ; and such was also the origin of the antipathy which it has ever 
inspired. — History of Civilization. 

2. Act of Homage and Fealty. — It may be worth while here to give the 
ceremonies performed in conferring feudal tenures : 

" The manner of entering into the homage of another is this : that is to say, 
the feudal seigneur must be requested, with bare head, by the man who wishes 
to do faith and homage, to be received into his faith; and if the seigneur will, 
he sits down, and the vassal unbuckles his girdle, if he have one, lays down his 
sword and staff, kneels on one knee, and says these words : ' I become your man 
from this day forth, of life and limb, and will hold faith to you for the lands I 
claim to hold of you.' And when the freeholder shall do fealty to his lord, he 
shall put his right hand upon a book, and shall say these words : ' This hear, my 
lord, that I will be faithful and loyal to you, and will keep faith to you for the 
lands which I claim to hold of you, and will loyally fulfil unto you the customs 
and services that I shall owe you on the conditions belonging thereto, so help 
me God and the saints.' And then he shall kiss the book ; but he shall not 
kneel when he does fealty, nor make so humble a reverence as is before pre- 
scribed for homage. And there is a great difference between doing fealty and 
doing homage ; for homage can only be done to the seigneur himself, whereas 
the seneschal of the seigneur's court or his bailiff may receive fealty in his 
name." 

3. Oppressions of the Feudal System in England. " In England, women 
and even men, simply as tenants in chief, and not as wards, fined to the crown 
for leave to marry whom they would, or not to be compelled to marry any other. 
Towns not only fined for original grants of franchises, but for repeated con- 
firmations. The Jews paid exorbitant sums for every common right of mankind, 
for protection, for justice. In return they were sustained against their Chris- 
tian debtors in demands of usury, which superstition and tyranny rendered 
enormous. Men fined for the king's good will; or that he would remit his 
anger ; or to have his mediation with their adversaries. Many fines seem, as it 
were, imposed in sport, if we look to the cause, though their extent and the 
solemnity with which they were recorded, prove the humor to have been differ- 
ently relished by the two parties. Thus the bishop of Winchester paid a tun of 
good wine for not reminding the king (John) to give a girdle to the countess 
of Albemarle ; and Robert de Vaux five best palfreys, that he might hold his 
peace about Henry Pinel's wife. Another paid four marks for leave to eat (pro 
licentid comedendi). But of all the abuses which deformed the Anglo-Norman 
government, none was so pernicious as the sale of judicial redress. The king, 



160 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWEE. 

we are often told, is the fountain of justice ; but in those ages it was one which 
gold alone could unseal. Men fined to have right done them ; to sue in a 
certain court ; to implead a certain person ;■ to have a restitution of land which 
they had recovered at law. From the sale of that justice which every citizen 
has a right to demand, it was an easy transition to withhold or deny it. Fines 
were received for the king's help against the adverse suitor; that is, for the 
perversion of justice, or for delay. Sometimes they were paid by opposite 
parties, and, of course, for opposite ends. These were called counter fines ; but 
the money was sometimes, or as Lord Lyttleton thinks, invariably, returned 
to the unsuccessful suitor." — Hallam's Middle Ages, vol. ii. p. 316. 

Abuses of Prerogative — Purveyance. — " The real prerogatives that might 
formerly be exerted, were sometimes of so injurious a nature, that we can hardly 
separate them from their abuse : a striking instance is that of purveyance, 
which will at once illustrate the definition above given of a prerogative, the 
limits within which it was to be exercised, and its tendency to transgress them. 
This was a right of purchasing whatever was necessary for the king's household, 
at a fair price, in preference to every competitor, and without the consent of the 
owner. By the same prerogative, carriages and horses were impressed for the 
king's journeys, and lodgings provided for his attendants. This was defended on 
a pretext of necessity, or at least of great convenience to the sovereign, and was 
both of high antiquity and universal practice throughout Europe. But the royal 
purveyors had the utmost temptation, and doubtless no small store of precedents, 
to stretch this power beyond its legal boundary, and not only to fix their own 
price too low, but to seize what they wanted without any payment at all, or with 
tallies, which were carried in vain to an empty exchequer. This gave rise to a 
number of petitions from the commons, upon which statutes were often framed ; 
but the evil was almost incurable in its nature, and never ceased till that prerog- 
ative was itself abolished. Purveyance, as I have already said, may serve to 
distinguish the defects from the abuses of our Constitution. It was a reproach 
to the law that men should be compelled to send their goods without their con- 
sent ; it was a reproach to the administration that they were deprived of them 
without payment. 

" The right of purchasing men's goods for the use of the king was extended 
by a sort of analogy to their labor. Thus Edward III. announces to all 
sheriffs that William of Walsingham had a commission to collect ' as many 
painters as might suffice for our works in St. Stephen's chapel, Westminster, 
to be at our wages as long as shall be necessary,' and to arrest and keep in 
prison all who should refuse or be refractory ; and enjoins them to lend their as- 
sistance. Windsor Castle owes its massive magnificence to laborers impressed 
from every part of the kingdom. There is even a commission from Edward 
IV. to take as many workmen in gold as were wanting, and to employ them at 
the king's cost upon the trappings of himself and his household." — Hallam's 
Middle Ages, vol. iii. p. 148. 



CHAPTER III. 

ENGLAND UNDER THE YOKE. 

NECESSITIES OF DESPOTISM — SUPPRESSION OF THE ANGLO-SAXON SYSTEM AND LAN- 
GUAGE — CONFISCATION THE NEW FOREST AND FOREST LAWS — TYRANNY 

OF THE KING OVER THE NOBLES EXACT DEFINITION OF CONQUEST — REM- 
NANTS AND TRADITIONS OF THE SAXON SYSTEM — CHARTERS RUFUS — HENRY 

I. STEPHEN — MATILDA — HENRY II. RICHARD II. FIRST IMPEACHMENT BY 

PARLIAMENT. 

Despotic power can only be sustained by acts of despotism. In 
the idea of subjection to the will of a mere mortal, there is some- 
thing so revolting to our nature that the bare conception rouses an 
involuntary spirit of resistance. Despotism is war with human 
nature; and the first necessity of despots is defence against the 
instincts of mankind. The necessities of their position force them 
to crush out the spirit of resistance to their usurpation. It is 
not enough to crush resistance. They must crush the spirit which 
inspires resistance, or they cannot be secure. It is a combat a 
Voutrance. The law of self-defence demands relentless war upon 
their foe, and that foe is the nature God has breathed into the nos- 
trils of mankind. Hence it is that tyrants, naturally amiable and 
humane, have not unfrequently become the scourges of their race. 
Compelled at first to use brute force against their open enemies, 
and then to wage a ceaseless warfare with their hidden foe, in the 
heart of every man worthy of the name of freeman, habit has 
at last brought them to be willingly what tyrants must be actually 
— enemies of man. Self-preservation, calling for continual intimi- 
dation, leads to an inveterate habit of trampling on all human 
rights and obligations, till the tyrant learns that his true enemy is 
human nature. Then his task is clear. The arm of power and the 



162 ENGLAND TJXDER THE YOKE, 

allurements of temptation are his only instruments ; and he becomes 
the corrupter and destroyer of his race. 

The English people felt the full force of these horrible necessities 
during the first five Norman reigns. Under the iron hand of Wil- 
liam, almost every vestige of the Anglo-Saxon system disappeared. 
The great mass of the freemen were disfranchised and made serfs. 
The ealdormen and eorls were attainted and exiled, and their 
lands delivered to the Norman followers of the king. The Anglo- 
Saxon priests and prelates were degraded from their offices, and 
Norman creatures of the king appointed in their stead. The Saxon 
language was proscribed, and the procedures of the courts required 
to be in Norman French. The native people, ground down by 
exactions and exasperated by the insults heaped upon them by their 
foreign masters, were lashed into occasional revolt; and thus 
furnished to the king pretexts for further confiscations, and excuses 
for more violent oppressions. From the Domesday Book we learn 
that of seven hundred tenants in capite, or immediate vassals of the 
crown, not one was a Saxon; and though of the 60,215 knights' fees 
in England, it is probable that some — perhaps many — were still 
held by Saxons, we must recollect that they were now no longer 
freeholders, but were compelled to surrender their own lands into 
the hands of Norman barons, and to receive them back as vassals, 
burdened with the usual imposts of the feudal tenure. As the 
landless Saxon freemen were degraded into serfs, so were the free 
proprietors of lands degraded into feudal vassals. 

Thus the people felt the full weight of the conqueror's heel. 
But the necessities of arbitrary power demand intimidation of its 
subjects, and the conqueror proceeded to strike terror to the people's 
hearts by acts of ruthless cruelty which, if not prompted by this 
cause, could only be described as acts of fiendish wantonness. 
Under the thin pretence that he was apprehensive of a Danish in- 
vasion, he caused the whole region from the Tyne to the Humber to 
be laid waste. Thousands of the people died of want beside the 
ruins of their wasted homes; and for nine years, thoughout the 
desolated district there was not one village — scarcely one house — 
left for human occupation. Fear of an invasion, flimsy as the reason 
was, was yet some reason for this wholesale cruelty ; but no excuse 



ENGLAND UNDEE THE YOKE. 163 

was even attempted for a similar destruction, both of life and prop- 
erty, caused in the making of the king's " New Forest." Thousands 
of persons died of hunger, that the king's deer might be fed. 
Thousands of homes were given to the torch, that in their ruins 
the wild boar might make his lair. Thousands of acres were with- 
drawn from cultivation for the use and benefit of man, to furnish 
pastures for the royal game. And if the starving Saxon churl pre- 
sumed to kill a boar or deer, his punishment was the loss of his 
eyes. This trampling on the common instincts of humanity was 
not mere wantonness. It was part of. the policy of the conqueror, 
and was intended to inspire his subjects with a terror of his power. 
To overawe his Norman as well as his Saxon vassals, he kept up a 
standing army of mercenary soldiers from the Continent, and their 
support he furnished by the manifold exactions which the feudal 
system gave the opportunity of making. The comparative small- 
ness of the fiefs enabled him to put down that pernicious system of 
marauding by the barons which prevailed upon the Continent. This 
he did, not as an act of justice, but as a means of making his power 
felt and respected. In his realm of England he endured no robber 
but himself. Rightly, indeed, does Hallam say that " England had 
passed under the yoke; " yet England bore no other yoke than that 
which any free people must endure which yields its freedom to the 
hand of foreign or domestic usurpation. The necessities of tyranny 
are everywhere the same. It has the same position to maintain ; 
the same war with the inborn instincts of mankind to wage; the 
same means of corruption and intimidation to apply; and the same 
heartless recklessness in working out its aims. 1 

It was not long before the Normans, under William and his im- 
mediate successors, found out that the royal despotism was not a 
despotism merely to the Saxon3. With that they might have been 
content ; but they were not long in discovering that they themselves 
were as much objects of oppression to their sovereign as the subju- 
gated Saxons. The effect of this was to make common cause between 
them and the Saxons as against the crown : and it is singular to 
notice that the causes which eventually led to the deliverance both 
from kingly tyranny were the few remnants of the ancient Saxon 
institutions that had been permitted to remain. William did not 



164 ENGLAND UNDER THE YOKE. 

affect to have conquered England, but to have conquered the crown of 
England ; the term conquest not being in feudal language under- 
stood in its modern sense, but signifying simply acquisition in any 
way other than by inheritance ; and as William claimed to have 
acquired the crown, not by inheritance, but by a real or pretended 
grant from Edward the Confessor, and was thus the original acquirer 
of it to his family, he was called the conqueror, i. <?., the acquirer of 
the crown of England. He did not consequently pretend to have 
subjugated England by the sword, but by the sword to have won 
his rightful crown from Harold. At his coronation he took the same 
oaths as the Saxon kings had taken theretofore, and swore in the 
same formula to support and defend the laws of the realm. It is 
true that William, like more modern rulers, held official oaths but 
lightly, and completely overturned the Anglo-Saxon constitutions. 
Yet in some respects the former institutions still remained. The 
shire and burgh courts — now called courts of assize — and the hun- 
dred courts — now called the quarter sessions — continued to be held. 
In these the ancient laws and customs of the kingdom were pre- 
served ; in many matters they retained that local sovereignty which 
was their great characteristic before the Conquest ; and in all of 
them tradition still spoke of a time when laws and statutes were not 
emanations from the arbitrary will of a despotic king, but were en- 
acted by a free and independent council of the kingdom, to whose 
laws the prince and people were alike amenable. Thus the idea 
of constitutional government was preserved. When groaning under 
the oppressions of the kings, the Norman barons, no less than the 
Saxons, clamored for the laws of Edward the Confessor ; and as the 
necessities of the crown afforded opportunity, they called for and 
obtained successive charters recognizing the ancient Saxon laws. 
Such charters were, however, always looked upon as acts of royal 
grace. No parliament or council ventured to assume the functions 
of the Saxon witena-gemote ; nor, till the time of Richard I. did 
Parliament assert any authority beyond that of a council of advice. 
In their subjection to the throne, their only hope lay in the partial 
recollection of the ancient liberties of England, which was kept alive 
by a few feeble remnants of the Anglo-Saxon polity. 

For a hundred and fifty years after the Conquest, the history of 



EXGLAXD UXDER THE YOKE. 165 

England, so far as it relates to constitutional developments, may be 
summed up in a few sentences. 

William Kufus, the immediate successor of the Conqueror, 
followed in the footsteps of bis fatber, and extended bis oppressions 
to tbe cburcb. He seized upon the temporalities of vacant bishop- 
rics and abbeys, and delayed appointments to them, that he might 
continue to enjoy their revenues. In many instances he sold or 
gave away the church lands to bis favorites. When he purchased 
tbe duchy of Normandy from his brother Robert for 10,000 marks, 
this sum was raised by general extortions both from church and 
laity, so rigorous that convents were compelled to melt their plate 
in order to supply the amounts required of them. 2 

Henry I., having usurped the crown in defiance of the right of 
his brother Kobert, duke of Normandy, endeavored to secure him- 
self in his possession by concessions to his subjects. He immedi- 
ately gave a charter which professed to do away with the abuses of 
bis predecessor's reign; and as an earnest of his purpose he de- 
graded and imprisoned Kalph Flambard, bishop of Durham, who 
had been the agent of his brother's tyranny. 3 He also reconciled the 
Saxons to his government by marrying Matilda, daughter of Mal- 
colm III. of Scotland, and niece to Edgar Atheling. Thus both 
the Normans and the Saxons looked to better days under the rule 
of Henry ; but though by no means so unscrupulous a prince as 
Rufus, he had hardly given his charter before he broke it by seiz- 
ing on the temporalities of the see of Durham, which he held for 
five years ; and when be went on bis invasion of Normandy, he 
raised the means for bis expedition by exactions not less ruinous 
than those of Rufus. 

Stephen, a usurper like his predecessor, sought, like him, to win 
the barons to his cause by a pretended abolition of abuses. He 
gave a solemn charter in which he promised that church benefices 
falling vacant should immediately be filled, and that the crown 
should no more seize their temporalities ; that the royal forests 
should be diminished ; that certain obnoxious taxes levied for fic- 
titious purposes should be abolished, and that the wholesome laws 
of Edward the Confessor should be restored. To win the favor of 
the barons, he allowed them privileges hitherto unknown. The 



166 ENGLAND UNDER THE YOKE. 

baronial strongholds became dens of highway robbers. New castles, 
built at first for safety, were in turn applied to purposes of violence ; 
and England in the reign of Stephen was one scene of turbulence 
and bloodshed. Charters and laws in such a reign were of but 
little value. When Stephen thought his crown safe on his head, he 
spurned the solemn obligations he had sworn before the altar to ful- 
fil ; and the historian tells us that not laws nor charters, but his 
"power, was the sole measure of his conduct." Such a monarch 
could not be otherwise than hateful to his subjects of all classes; 
and the anarchy which overspread the realm must have impressed 
them with the absolute necessity of fixed laws founded, not in the 
caprice or the necessities of vicious princes, but on the eternal prin- 
ciples of right. Hence, when Matilda, the true heir to the succes- 
sion came with her son Henry to assert her right, she found the 
people of all classes ready to support her claims, and Stephen was 
before long beaten and made prisoner. But England had by this 
time learned that her prosperity depended, not upon the person of 
their king, but on the equitable administration of just laws. When 
the queen was in the pride of her triumph, it was firmly but respect- 
fully demanded by the people that she should promise to govern them 
by the laws of Edward. Their prayer was haughtily refused ; and 
the result was the desertion of her standard by the people, her de- 
feat by Stephen's partisans, and, ere long, the restoration of a king 
who, faithless as he was, at least was willing to confess his obliga- 
tion to obey the fundamental constitutions of the kingdom over 
which he ruled. 

Henry II. was a monarch of another stamp. Firm and deter- 
mined, he applied himself to the correction of the multiform abuses 
which had grown up in the previous reign. His first act was to dis- 
miss the mercenaries who had been collected by his predecessor at 
a ruinous expense to overawe the barons. Then he demolished the 
baronial castles which had been productive of such monstrous evils ; 
but required that every man throughout the country should be 
armed and practised in the use of weapons suited to his rank in 
life ; thus aiming to establish peace within the country and security 
against invasions from without. Still more to repress the violence 
of the barons, he commissioned four justiciaries, whose duty was to 



ENGLAND UNDER THE YOKE. 167 

travel through the country, holding courts in the king's name ; and 
being armed with full power to decide the causes brought before 
them, they were able to curb the barons in their very strong- 
holds. 

Henry's disposition was unquestionably to do right ; yet one 
important act of this reign shows how loose were all ideas both of 
parliaments and legislation. A law was made that if a feudal lord 
contracted debts, his vassal's goods should not be seized to satisfy 
the creditor; but that, until the debt were paid, the creditor 
should be entitled to receive the rents paid by the vassal to his 
lord. This equitable law was not enacted by an English parlia- 
ment, but was made at Verneuil, in a council of prelates and barons 
of Normandy, Poictou, Anjou, Maine, Touraine, and Brittany ; yet 
it was readily accepted as a valid law in England — so completely 
had the royal power at this time overshadowed, and indeed extin- 
guished the remembrance of the national legislature. 

In the next reign, favorable circumstances tended to the rees- 
tablishment of the authority of Parliament. During the protracted 
absence of King Richard in the Crusades, William Longchamp, 
who had been left joint regent and judiciary with the bishop of Dur- 
ham, wielded his power with so high a hand, that Parliament, on its 
own responsibility, removed him from his office. There is reason 
to believe that Richard was not displeased with this act of his barons, 
but, at all events, the act stood ; and for the first time since the 
days of Saxon witena-gemotes, another voice than that of the sov- 
ereign was heard in the administration of the national affairs. The 
first blow had been struck at the unlimited autocracy established by 
the Norman conqueror in England. The first step toward the 
building up of a free government with a well-balanced constitution 
had been taken. Centuries of conflict still had to be passed through 
ere the work could be accomplished ; but in this act of the barons 
the great work had been begun. The Parliament of England was 
by this act reestablished ; and before that generation passed away, 
the abject baseness and the treacherous tyranny of John inspired 
the will, afforded the occasion, and called forth the power to set 
the liberties of England on a permanent foundation. 4 



168 ENGLAND UNDER THE YOKE. 



NOTES. 

1. Character of the Reign of the Conqueror. — " The commencement of his 
(William the Conqueror's) administration was tolerably equitable. Though many 
confiscations took place in order to gratify the Norman army, yet the mass of 
the property was left in the hands of its former possessors. Offices of high trust 
were bestowed upon Englishmen, even upon those whose family renown might 
have raised the most aspiring thoughts. But partly through the insolence and in- 
justice of William's Norman vassals, partly through the suspiciousness natural to 
a man conscious of having overturned the national government, his yoke soon be. 
came more heavy. The English were oppressed ; they rebelled, were subdued, 
and oppressed again. All their risings were without concert and desperate ; 
they wanted men fit to head them, and fortresses to sustain their revolt. After 
a very few years they sank in despair, and yielded for a century to the indigni- 
ties of a comparatively small body of strangers without a single tumult. So pos- 
sible is it for a nation to be kept in permanent servitude, even without losing 
its reputation for individual courage, or its desire of freedom." — Hallam's Mid- 
dle Ages, vol. ii. p. 301. 

" England passed under the yoke ; she endured the annoyance of foreign con- 
querors ; her children, even though their loss in revenue may have been exag- 
gerated, and still it was enormous, became a lower race, not called to the coun- 
cils of their sovereign, not sharing his trust or his bounty. They were in a far 
different condition from the provincial Romans after the conquest of Gaul, even 
if, which is hardly possible to determine, their actual deprivation of lands should 
have been less extensive ; for, not only they did not for several reigns occupy 
the honorable stations which sometimes fell to the lot of the Roman subject of 
Clovis or Alaric, but they had a great deal more freedom and importance to 
lose. Nor had they a protecting church to mitigate barbarous superiority. 
Their bishops were degraded and in exile ; the footstep of the invader was at 
their altars ; their monasteries were plundered and the native monks insulted. 
Rome herself looked with little favor on a church which had preserved some 
measure of independence. Strange contrast to the triumphant episcopate of the 
Merovingian kings ! " — Ibid, vol ii. p. 308. 

" The tyranny of William displayed less of passion or insolence than of that 
indifference about human suffering which distinguishes a cold and far-sighted 
statesman. Impressed by the frequent risings of the English at the commence- 
ment of his reign, and by the recollection, as one historian observes, that the 
mild government of Canute had only ended in the expulsion of the Danish line, 
he formed the scheme of riveting such fetters upon the conquered nation that 
all resistance should become impracticable. Those who had obtained honorable 
offices were successively deprived of them ; even the bishops and abbots of 



ENGLAND UNDER THE YOKE. 169 

English birth were deposed — a stretch of power very singular in that age. Mor- 
car, one of the most illustrious English, suffered perpetual imprisonment. 
Waltheoff, a man of equally conspicuous birth, lost his head upon a scaffold by 
a very harsh if not iniquitous sentence. It was so rare in those times to inflict 
judicially any capital punishment upon persons of such ranks that his death 
seems to have produced more indignation and despair in England than auy 
single circumstance. The name of Englishman was turned into a reproach. 
None of that race for a hundred years were raised to any dignity in the state or 
church. Their language and the characters in which it was written were rejected 
as barbarous ; in all schools, if we trust an authority often quoted, children were 
taught French, and the laws were administered in no other tongue. It is well 
known that this use of French in all legal proceedings lasted till the reign of 
Edward III."— Ibid, vol. ii. p. 302, 303. 

The condition of England under the Conqueror may be readily conceived 
from the account given with apparent impartiality by the Saxon chronicler : 

" If any one wish to know what manner of man he was, or what worship he 
had, or of how many lands he were the lord, we will describe him as we have 
known him ; for we looked on him, and some while lived in his herd. King 
William was a very wise man and very rich, more worshipful and strong than any 
his foregangers. He was mild to good men who loved God ; and stark beyond 
all bounds to those who withsaid his will. Yet truly, in his time, men had 
mickle suffering, and yet very many hardships. Castles he caused to be wrought 
and poor men to be oppressed. He was so very stark. He took from his sub- 
jects many marks of gold, and many hundred pounds of silver ; and that he took, 
some by right, and some by mickle might, for very light need. He had fallen 
into avarice, and greediness he loved withal. He let his lands to fine as dear as 
he could ; then came some other and bade more than the first had given, and 
the king let it to him who bade more ; then came a third and bade yet more ; 
and the king let it into the hands of the man who bade the most. Nor did he 
reck how sinfully his reeves g'ot money of poor men, or how many unlawful 
things they did. For the more men talked of right law, the more they did 
against the law. He also set many deer-friths; and he made laws therewith 
that whosoever should slay hart or hind, him man should blind. As he forbade 
the slaying of harts, so also did he of boars ; so much he loved the high deer, as 
if he had been their father. He also decreed about hares that they should go 
free. His rich men moaned, and the poor men murmured ; but he was so hard 
that he recked not the hatred of them all. For it was need they should follow 
the king's will withal, if they wished to live, or to have lands, or goods, or his 
favour. Alas, that any man should be so moody, and should so puff up himself, 
and think himself above all other men ! May Almighty God have mercy on his 
soul and grant him forgiveness of his sins." — Saxon Chronicle. 

Assuredly the Norman king had good need of the devout prayer of his Saxon 
subject. 

8 



170 ENGLAND UNDER THE YOKE. 

2. Rufus. — Rufus was as reckless in the use of arbitrary power, and as fond 
of a rude joke, as some more modern rulers. Witness the following : 

"For a while, the new monarch, William Rufus, made himself popular by 
pledging himself to rule with justice, and to relieve the native English from sev- 
eral irksome restraints ; and by giving away or spending freely the accumulated 
wealth which came into his possession. But his temper was too violent to let 
him observe his promises. And when Lanfranc remonstrated with him, the 
king was not ashamed to reply in words which amounted to a confession that 
he neither had kept nor intended to keep them. { Who,' said he, ' can per- 
form all he promises ? ' 

" Instead of removing restraints, he probably added to those imposed by his 
father that severe one by which all families were compelled to extinguish their 
lights and fires at the sound of the evening bell, which was thence called curfew, 
that is, cover fire. As to the liberality of Rufus, it was but the extravagance of 
a thoroughly selfish man. The money he wasted had cost him no labor, and he 
therefore chose to set no bounds to his profusion ; caring nothing for the bur- 
dens which he thereby forced an unprincipled minister to impose upon his sub- 
jects. It is related of him, that his chamberlain having bought him a new pair 
of hose, William asked what they cost. ' Three shillings,' was the reply ; and 
this was at that time the price of a quarter of wheat. ' Away with them,' said 
he ; ' a king should wear nothing so cheap ; bring me a pair ten times as dear.' 
The shrewd attendant brought him an inferior pair, but said he had with difficul- 
ty prevailed with the tradesman to part with them at the price named by the 
king. On which William replied : ' You have now served me well ; those I will 
have.' 

" Such silly pride and wilful prodigality, when extended to all the occasions of 
expense to which a sovereign is necessarily subject, must as certainly consume 
the revenues of a kingdom as they would on a smaller scale destroy any private 
fortune. And a king, like any other spendthrift, will be too surely driven by his 
folly from pride to meanness. Though too haughty to wear clothes of ordinary 
goodness, William could lower himself to cheat a Jew. One of that unhappy 
race complained to him with tears, that his son had been converted ; and be- 
sought the king to command the youth to deny Christ, and return to the faith of 
his fathers. William gave no answer, but at the same time showed no horror at 
the request ; so that the Jew was encouraged to offer his sovereign sixty marks 
as a bribe for compliance. On this he sent for the young man, told him what 
his father required, and bade him acknowledge himself a Jew again. The youth 
expressed his hope that the king could not be in earnest. ' Son of a dunghill,' 
exclaimed William, ' do you think I would joke with you ? Obey me instantly, 
or, by the cross of Lucca, you shall lose your eyes.' Though thus threatened 
by a tyrant, who was known to fear neither God nor man, and whose passionate 
tone and fierce look seemed to declare that his threats would be executed the 
next moment, the young man calmly replied that he must suffer whatever the 
king should choose to inflict ; but that he had hoped a Christian sovereign would 



ENGLAND UNDER THE YOKE. 171 

have protected such as embraced the Christian faith. Finding him thus firm, 
William neither punished the convert, nor continued his threats, but, turning to 
the father, demanded the promised sum. The Jew objected that his son was as 
much a Christian as ever. ' I did what I could,' said William ; ' and do you 
think I will work without my reward ? As I have been unsuccessful, give me 
half.' The Jew was obliged to comply, and the king took his thirty marks."— 
Walter's Hist, of England, vol. i. p. 288-290. 

3. Charter of Henry I. — " Besides taking the usual coronation oath to main- 
tain the laws and execute justice, Henry I. passed a charter which was calculated 
to remedy many of the grievous oppressions which had been complained of 
during the reigns of his father and brother. He therefore promised that, at the 
death of any bishop or abbot, he never would seize the revenues of the see or 
abbey during the vacancy, but would leave the whole to be reaped by the suc- 
cessor; and that he would never let to farm any ecclesiastical benefice, nor 
dispose of it for money. After this concession to the church, whose favor was 
of so great importance, he proceeded to enumerate the civil grievances which 
he purposed to redress. He promised that upon the death of any earl, baron, or 
military tenant, his heir should be admitted to the possession of his estate, on 
paying a just and lawful relief, without being exposed to such violent exactions 
as had been usual during the late reigns ; he remitted the wardship of minors, 
and allowed guardians to be appointed, who should be answerable for the trust ; 
he promised not to dispose of any heiress in marriage, but by the advice of all 
the barons ; and if any baron intended to give his daughter, sister, niece, or 
kinswoman in marriage, it should only be necessary for him to consult the king, 
who promised to take no money for his consent, nor even to refuse permission, 
unless the person to whom it was purposed to marry her should happen to be 
his enemy. He granted his barons and military tenants the power of bequeath- 
ing by will their money or personal estates; and if they neglected to make a 
will, he promised that their heirs should succeed to them ; he renounced the right 
of imposing moneyage, and of lev} T ing taxes at pleasure on the farms which the 
barons retained in their own hands ; he made some general professions of moderat- 
ing fines ; he offered a pardon for all offences ; and he remitted all debts due to the 
crown; he required that the vassals of the barons should enjoy the same privi- 
leges which he granted to his own barons ; and he promised a general confirma- 
tion and observance of the laws of King Edward. This is the substance of the 
chief articles contained in that famous charter." — Hume, i. 313. 

4. Saxon Serfdom. — The most perfect picture of the condition of England 
under the Norman princes I have yet found is in the " Ivanhoe" of Sir Walter 
Scott. In language, costume, and all minor details, it is marked by the usual 
accuracy of that great and learned writer : 

" The human figures which completed this landscape were in number two, 
partaking, in their dress and appearance, of that wild and rustic character which 



172 ENGLAND UNDER THE YOKE. 

belonged to the woodlands of the West Riding of Yorkshire at that early period. 
The eldest of these men had a stern, savage, and wild aspect. His garment was 
of the simplest form imaginable, being a close jacket with sleeves, composed of 
the tanned skin of some animal, on which the hair had been originally left, but 
which had been worn off in so many places, that it would have been difficult to 
distinguish from the patches that remained, to what creature the fur had belong- 
ed. This primeval vestment reached from the throat to the knee3, and served 
at once all the usual purposes of body clothing; there was no wider opening at 
the collar than was necessary to admit the passage of the head, from which it 
may be inferred that it was put on by slipping it over the head and shoulders, 
in the manner of a modern shirt or ancient hauberk. Sandals, bound with 
thongs made of boar's hide, protected the feet, and a roll of thin leather was 
twined artificially around the legs, and ascending above the calf, left the knees 
bare, like those of a Scottish Highlander. To make the jacket sit yet more close 
to the body, it was gathered at the middle by a broad leathern belt, secured by a 
brass buckle ; to one side of which was attached a sort of scrip, and to the other 
a ram's horn, accoutred with a mouthpiece, for the purpose of blowing. In the 
same belt was stuck one of those long, broad, sharp-pointed, and two-edged 
knives, with a buck's-horn handle, which were fabricated in the neighborhood, 
and bore even at this early period the name of a Sheffield whittle. The man 
had no covering upon his head, which was only defended by his own thick hair, 
matted and twisted together, and scorched by the influence of the sun into a 
rusty dark-red color, forming a contrast with the overgrown beard upon his 
cheeks, which was rather of a yellow or amber hue. One part of his dress only 
remains, but it is too remarkable to be suppressed : it was a brass ring resembling 
a dog's collar, but without any opening, and soldered fast round his neck, so 
loose as to form no impediment to his breathing, yet so tight as to be incapable 
of being removed, excepting by the use of the file. On this singular gorget was 
engraved, in Saxon characters, an inscription of the following purport: " Gurth, 
the son of Beowulph, is the born thrall of Cedric of Rotherwood." Beside the 
swineherd, for such was Gurth's occupation, was seated, upon one of the fallen 
Druidical monuments, a person about ten years younger in appearance, and 
whose dress, though resembling his companion's in form, was of better materials, 
and of a more fantastic appearance. His jacket had been stained of a bright 
purple hue, upon which there had been some attempt to paint grotesque orna- 
ments in different colors. To the jacket he added a short cloak, which scarcely 
reached halfway down his thigh ; it was of crimson cloth, though a good deal 
soiled, lined with bright yellow ; and as he could transfer it from one shoulder to 
the other, or at his pleasure draw it all around him, its width, contrasted with its 
want of longitude, formed a fantastic piece of drapery. He had thin silver 
bracelets upon his arms, and on his neck a collar of the same metal, bearing the 
inscription: " Wamba the son of Witless, is the thrall of Cedric of Rotherwood." 
This person had the same sort of sandals with his companion, but instead of the 
roll of leather thong, his legs were cased in a sort of gaiters, of which one was 



EXGLAXD UNDER THE YOKE. 1*73 

red and the other yellow. He was provided also with a cap, having around it 
more than one bell, about the size of those attached to hawks, which jingled as 
he turned his head to one side or other ; and as he seldom remained a minute in 
the same posture, the sound might be considered as incessant. Around the 
edge of this cap was a stiff bandeau of leather, cut at the top into open work, 
resembling a coronet, while a prolonged bag arose from within it, and fell dowu 
on one shoulder, like an old fashioned nightcap, or a jelly bag, or the head gear 
of a modern hussar. It was to this part of the cap that the bells were attached ; 
which circumstance as well as the shape of his head-dress, and his own half-crazed 
half-cunning expression of countenance, sufficiently pointed him out as belong- 
ing to the race of domestic clowns or jesters, maintained in the houses of the 
wealthy, to keep away the tedium of those lingering hours which they were 
obliged to spend within doors. He bore, like his companion, a scrip, attached 
to his belt, but had neither horn nor knife, being probably considered as belong, 
ing to a class whom it is considered dangerous to intrust with edge tools. In 
place of these he was equipped with a sort of sword of lath, resembling that with 
which Harlequin operates his wonders upon the modern stage. 

" The outward appearance of these two men formed scarce a stronger contrast 
than their look and demeanor. That of the serf or bondsman was sad and 
sullen ; his aspect was bent on the ground with an appearance of deep dejection, 
which might be almost construed into apathy, had not the fire which occasional- 
ly sparkled in his red eye, manifested that there slumbered, under the appear- 
ance of sullen despondency, a sense of oppression and a disposition to resistance. 
The looks of Wamba, on the other hand, indicated, as usual with his class, a sort 
of vacant curiosity, and fidgety impatience of any posture of repose, together 
with the utmost self-satisfaction respecting his own situation, and the appearance 
which he made. The dialogue which they maintained between them was car- 
ried on in Anglo-Saxon, which, as we said before, was universally spoken by the 
inferior classes, excepting the Norman soldiers and the immediate personal depend- 
ants of the great feudal nobles. But to give their conversation in the original 
would convey but little information to the modern reader, for whose benefit we 
beg to offer the following translation. 

" ' The curse of St. Withold upon these infernal porkers ! ' said the swineherd, 
after blowing his horn obstreperously, to collect together the scattered herd of 
swine, which, answering his call with notes equally melodious, made, however, 
no haste to remove themselves from the luxurious banquet of beech mast and 
acorns on which they had fattened, or to forsake the marshy banks of the rivulet, 
where several of them, half plunged in mud, lay stretched at their ease, altogether 
regardless of the voice of their keeper. ' The curse of St. Withold upon them 
and upon me ! ' said Gurth ; ' if the two-legged wolf snap not up some of them 
ere nightfall, I am no true man. Here, Fangs ! Fangs ! ' he ejaculated at the 
top of his voice to a ragged, wolfish-looking dog, a sort of lurcher, half mastiff, 
half greyhound, which went limping about as if with the purpose of seconding 
his master in collecting the refractory grunters ; but which, in fact, from miaap- 



174 ENGLAND UNDER THE YOKE. 

prehension of the swineherd's signals, ignorance of his own duty, or malice 
prepense, only drove them hither and thither, and increased the evil which he 
seemed designed to remedy. ' A devil draw the teeth of him,' said Gurth, 
' and the mother of mischief confound the ranger of the forest that cuts the 
foreclaws oft* our dogs, and makes them unfit for their trade ! Wamba, up and 
help me, an thou beest a man ; take a turn round the back o' the hill, to gain the 
wind on them ; and when thou'st got the weather gage, thou mayst drive them 
befcre thee as gently as so many innocent lambs.' 

" ' Truly,' said Wamba, without stirring from the spot, ' I have consulted 
my legs upon this matter, and they are altogether of opinion, that to carry my 
gay garments through these sloughs would be an act of unfriendship to my 
sovereign person and royal wardrobe ; wherefore Gurth I advise thee to call off 
Fangs, and leave the herd to their destiny, which, whether they meet with bands 
of travelling soldiers, or of outlaws, or of wandering pilgrims, can be little else 
than to be converted into Normans before morning, to thy no small ease and 
comfort. 

" ' The swine turned Normans, to my comfort ! ' quoth Gurth, ' expound that 
to me, Wamba, for my brain is too dull and my mind too vexed to read 
riddles,' , 

" l Why, how call you these grunting brutes running about on their four 
legs ? ' demanded Wamba. 

" ' Swine, fool, swine,' said the herd, ' every fool knows that.' 

" 'And swine is good Saxon,' said the jester; 'but how call you the sow 
when she is flayed, and drawn, and quartered, and hung up by the heels like a 
traitor ? ' 

" 'Pork,' answered the swineherd. 

" ' I am very glad every fool knows that too,' said Wamba ; ' and pork I 
think is good Norman-French ; and so when the brute lives and is in the charge 
of a Saxon slave, she goes by her Saxon name ; but becomes a Norman, and is 
called pork, when she is carried to the castle hall to feast among the nobles ; what 
dost thou think of this, friend Gurth, ha ? ' 

" ' It is but too true doctrine, friend Wamba, however it got into thy fool's 
pate.' 

" 'Nay, I can tell you more,' said Wamba in the same tone; 'there is old 
Alderman Ox continues to hold his Saxon epithet while he is under the charge 
of serfs and bondsmen such as thou, but becomes Beef, a fiery French gallant, 
when he arrives before the worshipful jaws that are destined to consume him. 
Mynheer Calf, too, becomes Monsieur de Veau in the like manner ; he is Saxon 
when he requires tendance, and takes a Norman name when he becomes matter 
of enjoyment.' 

" ' By St. Dunstan,' said Gurth, ' thou speakest but sad truths ; little else is 
left to us but the air we breathe, and that appears to have been reserved with 
much hesitation, solely for the purpose of enabling us to endure the tasks they lay 
upon our shoulders. The finest and the fattest is for their board ; the loveliest is 



ENGLAND UNDER THE YOKE. 175 

for their couch; the best and bravest supply their foreign masters with soldiers, 
and whiten distant lands with their bones, leaving few here who have either will 
or the power to protect the unfortunate Saxon. 

* * * * ***** 

" ' Gurth,' said the jester, ' I know thou thinkest me a fool, or thou wouldst 
not be so rash in putting thy head into my mouth. One word to Reginald Front 
de Boeuf, or Philip de Malvoisin, that thou hast spoken treason against the Nor- 
man, and thou art but a castaway swineherd ; thou wouldst waver on one of 
these trees as a terror to all evil speakers against dignities.' 

" 'Dog, thou wouldst not betray me,' said Gurth, 'after having led me on 
to speak so much at disadvantage ? ' 

"'Betray thee !' answered the jester; 'no, that were the trick of a wise 
man ; a fool cannot half so well help himself,' &c, &c. — Ivanhoe. 



CHAPTER IV. 

THE GIVING OF MAGNA CHAKTA. 

STATE OF THE KINGDOM AT THE ACCESSION OF JOHN—EARLY ACTS OF HIS REIGN 

MURDER OF PRINCE ARTHUR REFUSAL OF THE BARONS TO FOLLOW JOHN 

INTO FRANCE — HIS SEIZURE OF THE TEMPORALITIES OF CANTERBURY AP- 

POINTMENT OF LANGTON TO THE ARCHBISHOPRIC ENGLAND UNDER INTER- 
DICT THE KINGDOM GIVEN BY THE POPE TO PHILIP OF FRANCE THE INTER- 
DICT REMOVED — JOHN'S OATH BEFORE RECEIVING ABSOLUTION DISCOVERY 

OF THE CHARTER OF HENRY I. BY LANGTON- — THE BARONS SWEAR TO 

MAINTAIN IT, AND DEMAND THAT JOHN SHALL RATIFY IT THEY RAISE AN 

ARMY LONDON DECLARES FOR THE BARONS THE MEETING AT RCNNYMEDE 

— THE CHARTER GRANTED ITS CHARACTER AND PROVISIONS — RECOGNITION 

OF THE RIGHT OF REBELLION HUME AND HALLAM ON THE CHARTER. 

At the accession of King John the power of Parliament as a 
legislative body was distinctly recognized, "but it is doubtful wheth- 
er any clear idea of the vast importance of the privilege of parlia- 
mentary legislation had been formed. During the various disturb- 
ances which had ensued upon the seizure of the crown by princes 
who had no legitimate title to it, the barons had been taught their 
power in the disposition of a vacant throne. Their power to check a 
crowned king they had not yet learned. Again, the insecurity of 
these usurping princes had from time to time induced them to give 
charters promisiog to rule their people by the good laws of the Saxon 
kings. But of the purport of these laws the people were profound- 
ly ignorant. Contrasted with the violence of Norman rule, the days 
of equitable Saxon government were remembered in the popular 
traditions as the golden age, and these charters of the kings were 
gratifying to a general desire, however vague, for fixed and funda- 
mental laws. But they were never clearly understood. The Nor- 
man barons knew, as yet, no government but that of feudalism ; the 



THE GIVING OF MAGNA CHARTA. 177 

Saxon people had been crushed till they had lost the recollec- 
tion of their ancient liberties ; and neither had yet learned their 
power to force a sovereign to respect his subjects' rights. Hence 
the successive charters were neglected equally by prince and peo- 
ple, and soon passed into oblivion. In the reign of John, only one 
copy of the charter given by Henry I. was to be found in the 
whole kingdom, though a copy had been sent to every shire and 
diocese throughout the land ! It needed such a reign as that of John 
to rouse the people to activity. Had he possessed the strong will, the 
sagacious forecast, and the iron nerve of the Conqueror, the history 
of England might have been like that of France ; but his unequal- 
led course of murder, meanness, falsehood, perjury, licentiousness, 
extortion, and oppression roused both lords and commons to a 
sense of the necessity of a fixed constitution which should bind 
both prince and people ; his pusillanimous weakness was a tower of 
strength to the great confederacy which was formed to vindicate their 
liberties ; and the sound wisdom and discretion of the patriot arch- 
bishop, Stephen Langton, guided them in their endeavors, till the 
fundamental law of England, which has never to this day been 
changed but by the development of its inestimable principles, was 
laid down in the instrument called Magna Charta. 

The early acts of John's reign were but little likely to inspire 
the people with respect for royalty. He was not the true heir to 
the throne ; for though his elder brother Geoffrey was dead, Ar- 
thur the son of Geoffrey still lived, and was, in right, the king of 
England. Not content, however, with supplanting Arthur, John, 
having defeated his adherents and gained possession of his person, 
murdered him in prison. This foul assassination of a child whose 
early qualities gave promise of a noble manhood, inspired the ba- 
rons with resentment and disgust. Philip of France, availing him- 
self of the occasion furnished by the crime of John and the aliena- 
tion of his subjects, marched upon, and took possession of the Nor- 
man duchy; and when John summoned the English barons to 
accompany his standard in an expedition for the recovery of his 
lost province, they indignantly refused to follow him. Thencefor- 
ward he applied himself to the oppression of his English subjects. 
The limits of our space forbid us to relate the story of his tyranny. 
8* 



178 THE GIVING OF MAGNA CHAETA. 

Unlimited licentiousness, rapacity, and prodigality, and a succes- 
sion of arbitrary fines, imprisonments, and taxes, are the chief points 
of the tale. At length his insolent extortion brought him into 
conflict with the only power which could effectually cope with him, 
— the church. The see of Canterbury falling vacant, he seized 
upon its lands and revenues, expelled the monks of Christ Church, 
who, according to their ancient custom, were about to elect a prelate 
to the vacant see, and of his own power named a new archbishop. 
Innocent III., the reigning Pope, was little likely to submit to this 
invasion of the church's rights. He instantly annulled the ap- 
pointment of the king, required him to give up the church lands, 
with the revenues he had appropriated, and appointed Stephen 
Langton to the archiepiscopal throne. John's reply to the Pope's 
requisitions was another seizure of church lands; and Innocent 
laid England under interdict. For nearly seven years Eng- 
land groaned beneath that fearful sentence. Public worship was 
suspended, and the people lived and died without the offices of their 
religion, and, so far as priestly ministrations were concerned, without 
God in the world. Had John possessed the affections of his peo- 
ple, he might have defied the Pope, declared the independence of 
the English Church, and so anticipated, partially at least, the 
events of a much later period. But his arbitrary conduct had 
arrayed all classes of his subjects in hostility against him. Laity 
and clergy, lords and commons hated and despised him ; and when 
Innocent, proceeding to extremities, declared his people released 
from their allegiance, and appointed Philip II., king of France, to 
the throne of England, so few of the barons seemed disposed to 
stand by him, that, as we learn from Matthew Paris, the historian 
of his reign, he actually sent for succor to Murmelius, the Moslem 
king of Spain and Africa, offering, in return for his assistance, to 
apostatize to Islamism, and hold his kingdom as a vassal of the 
Moorish king. But Philip gave him short space to make such 
alliances ; and John submitted to the Pope on terms which showed 
how utterly he was humiliated. He submitted to the censures of the 
church, resigned his crown to the Pope's legate, and received it 
back again as the Pope's gift, to be held as the Pope's vassal. On 
these conditions Innocent consented to require the French king to 



THE G1YIXG OF MAGNA CHAETA. 1*79 

abstain from his invasion of the realm of England. The interdict 
was raised, and John was solemnly absolved at Winchester by 
the primate Langton, in June, 1214. But before the primate 
gave him absolution, he required the king to swear "that he 
would diligently defend the ordinances of Holy Church, and that his 
hand should be against all her enemies; that the good laws of his 
ancestors, and especially those of King Edward the Confessor, whose 
restoration had been promised by the charter of Henry I., should he 
recalled, and evil ones destroyed ; and that his subjects should receive 
justice, according to the upright decrees of his courts.'''' John also swore 
" that all corporations and private persons whom the interdict had 
damaged should receive a full restitution of all which had been 
taken away, before the time of the approaching Easter, if his sen- 
tence of excommunication were first removed. He swore, moreover, 
fidelity and obedience to Pope Innocent and his catholic successors, 
and that he would give them that superiority which was already 
contained in writing." 

John held his oaths but lightly, and months passed away with- 
out redress of grievances, without the abolition of oppressive laws 
and customs, and without that restoration of the ancient con- 
stitutions which had been promised by the charter of King Henry, 
and confirmed by John's oath. 

It is probable that John was not aware of the importance of 
that charter. Certainly the barons were in utter ignorance of its 
provisions. But the patriotic Langton was as learned as he was 
heroic and discreet. Calling the barons to him, he informed them 
that he had a copy of the charter of King Henry, read it to them 
article by article, and, as he did so, showed them its immense 
importance, and the ease with which it might be applied to 
their existing circumstances. 2 Overjoyed at this discovery, and 
filled with hope, the barons joined in a confederacy, with the primate 
at their head, to force John to make good the oaths which he had 
taken ; and the hands of the confederates were strengthened on the 
very threshold of their enterprise by an outbreak of the king's 
unbridled lechery. 3 Assembling at the abbey of St. Edmund, in 
Edmundsbury, on the 20th of November (St. Edmund's day), they 
swore before the high altar to stand by each other, and make war 



180 THE GIVING OF MAGNA CHARTA. 

upon the king till he should by a solemn charter ratify their liber- 
ties, with provisions under which they might themselves be able to 
compel him to respect them. On Epiphany they came to him with 
such a military force as challenged his respect,and solemnly demand- 
ed that he would make good his oaths. John asked till Easter to 
consider their demands, in hopes that through the papal influence 
he might be able to dissolve the confederacy. The time was 
granted, but John's hopes were disappointed. In the week suc- 
ceeding Easter the confederates assembled at the town of Stamford 
with two thousand knights and their retainers. Thence they 
marched to Brackly on the 27th of April. John held the town of 
Oxford, fifteen miles from Brackly, and despatched the archbishop 
with the earl of Pembroke to the camp of the confederates. 
When they returned, they brought an abstract of the articles de- 
manded by the barons, which was subsequently made the basis of the 
charter, and announced their purpose to make war upon the king 
till he should grant what they desired. " And why," said the ex- 
cited monarch with a scornful sneer, " And why demand they not 
my kingdom likewise ? By God's teeth, I will never grant them 
liberties that will make myself a slave." It was not long before he 
found it necessary to break this oath like the rest. London declared 
for the confederates, and it is said that London even then could 
muster 80,000 men-at-arms. The barons took possession of the 
capital on the 22d of May, and issued writs of summons to all the 
nobles who had not yet joined them. The effect was magical ; and 
in a few days John was left at Oldham with but seven attendants, 
some even of whom, though they had not deserted him, were cor- 
dially in sympathy with the confederates. The king had no choice 
left but to comply with the demands of his revolted barons ; and, 
after a few unimportant preliminaries, met them on the plain of Run- 
nymede, beside the Thames, where they encamped apart, like ene- 
mies, from June 15th till June 19th, when the negotiations were 
completed. The articles embodied in the first demand of the con- 
federates were, with some verbal alterations, made into a royal 
grant; and Magna Charta, the Great Charter of the Liber- 
ties of England, signed and sealed by the king's hand, was sol- 
emnly declared, with grave formalities, to be, what it has ever since 



THE GIVING OF MAGNA CHART A. 181 

remained — the fundamental law of England. This time at least 
the people understood the meaning of the royal charter. The ty- 
rannies of John had fortunately been so flagrant, so distinct, so 
universal among all classes of his subjects, that a bare recital of 
his acts, coupled with a prohibition of the like in time to come, was 
a complete protection to the people for the future. In the charter 
we find not one abstraction, theory, or maxim of government, but 
a distinct and sharp enumeration of things which the king shall and 
which he shall not do, that shows clearly both the wrongs he had 
committed and the rights he had denied. 4 It is for this reason, 
doubtless that the charter has proved to 'be so good and fruitful. 
For having ever afterward been regarded as the root and ground of 
the whole English Constitution, the judges have from time to time 
applied to it for precedent as cases of a novel character arose ; and 
in its multifarious clauses they have seldom failed to find one which 
contained a principle applicable to the cause in hand. To this di- 
rectness, therefore, of the charter we must trace much of the equity 
and reason of the common law. A charter, however good, expressing 
abstract theories and maxims of laws or government, must inevita- 
bly have led to inextricable confusions : some judges straining the 
law to the utmost, and others restraining it to the least it could 
mean. But given as it was in direct application to existing facts, it 
became a chapter of judicial precedents from which there could be no 
escape, and being gradually developed in the course of ages only as 
new circumstances called for some new application of the principles 
of equity on which it was established, centuries have vindicated its 
claim to be known as the Great Charter of the Liberties of England. 
As it is our purpose to give a translation of this venerable 
monument of freedom, with such copious notes as will make it per- 
fectly intelligible to the ordinary reader, we shall not here enter 
largely into the provisions of the charter, but content ourselves 
with an enumeration of its chief heads. It granted, then, the free- 
dom of the English church forever ; it mitigated the chief burdens 
of the feudal system, by decreasing the king's power over his imme- 
diate tenants, or tenants in capite, and by extending these provisions 
to sub-feudatories ; it did away, particularly, with the abuses of the 
feudal right of wardship and marriage, which had so oppressed the 



182 THE GIVING OF MAG^A CHAETA. 

helpless ; it defined and limited the aids which might be lawfully 
assessed by lords upon their vassals, and provided that in case of 
any further taxation, a parliament must he summoned to grant and assess 
it; it protected trade and commerce by a guarantee of safety to for- 
eign merchants, and a recognition of the ancient rights, liberties, 
and free customs of all boroughs, towns, and cities ; it provided for 
more regular administration of the laws by promising that the king's 
courts should henceforth be held at a fixed place, instead of following 
the royal person, thus at the same time removing judges from un- 
wholesome influences; it declared that justice should neither be denied, 
sold, nor delayed to any wttm ; that " NO FREEMAN SHOULD 
BE TAKEN, OR IMPRISONED, OR DISPOSSESSED, OR 
OUTLAWED, OR BANISHED, OR IN ANY WAY DE- 
STROYED, BUT BY THE LAWFUL JUDGMENT OF HIS 
PEERS OR BY THE LAW OF THE LAND;" and that a 
writ of inquisition, equivalent in its effect to a writ of HABEAS 
CORPUS, SHOULD BE INSTANTLY AND GRATUITOUS- 
LY GRANTED TO ACCUSED PERSONS WHO DESIRED 
A SPEEDY TRIAL ; it provided that unlawful fines which had 
been levied by the king and his immediate predecessors should be 
remitted or repaid, that the new forests should be disforested, that 
is, restored to cultivation, and that the king's foreign mercenaries 
should be banished. It concluded with a general amnesty to all 
who had taken part against the king in the discord between him 
and his barons, and with a SOLEMN RECOGNITION OF THE 
RIGHT OF REBELLION if the king should violate the charter. 
Five and twenty barons were appointed to compel him to fidelity. 
In case he injured any man, complaint was to be made to any four 
out of the twenty-five, who were to make a solemn application for re- 
dress, and if redress were not given them, the five and twenty barons 
were to make war on the king, to harass and distress him in every 
way possible, by taking his castles, lands, and possessions, saving 
harmless only the persons of the ro} r al family, till the wrong should 
be redressed according to their verdict, after which they were to return 
to their allegiance as before. In security of these things John de- 
livered to the barons the custody of London, and to Langton the 
Tower of London, to be held till his concessions should have been 



THE GIVING OF MAGNA CHARTA. 183 

fulfilled. Never was humiliation more complete ; never was victory 
more perfect ; but the victory was that of freedom over despotism, 
and the humiliation was that of a tyrant before freemen whose 
rights he had contemned, whose firesides he had sought to violate, 
and over whom he had attempted to usurp unlimited and irrespon- 
sible authority. 5 

Thus, by a great rebellion of the barons, England's worst and 
weakest monarch was compelled to grant a charter which declared 
rebellion lawful, and provided means for lawfully conducting it. 
No great step in the onward march of constitutional government 
has ever yet been made but by such righteous rebels as the barons 
of King John ; and while it is a truth that an unjustifiable rebel- 
lion is a heinous crime, it is no less true that without rebellion con- 
stitutional freedom never could have been achieved in any country. 
Magna Charta, the Petition of Right, the Bill of Rights, the Con- 
stitution of these States, were all successively the offspring of 
rebellion ; and if these States now abandon their free system to 
the hand of arbitrary power, the only hope for their posterity will 
be that they may follow the example of rebellion set them by our 
English and colonial ancestors. 

The provisions of the charter of King John involve, as Hume 
says, " all the chief outlines of a legal government, and provide 
for the equal distribution of justice and the free enjoyment of 
property; the great objects for which the people have a perpetual and 
inalienable right to rebel ; and which no time, nor precedent, nor 
statute, nor positive institution ought to deter them from keeping 
ever uppermost in their thoughts." Neither Hume nor the heroes of 
Runnymede appear to have been very firm believers in the doctrine 
of " unconditional loyalty." That article in the provisions of a con- 
stitutional government it was reserved for an American Republican 
to invent, in the year of grace — we had almost said disgrace — 1863. 

We cannot better end the present chapter than with the follow- 
ing quotation from Hallam : 

" In the reign of John, all the rapacious exactions usual to 
these Norman kings were not only redoubled, but mingled with 
other outrages of tyranny still more intolerable. These too were 
to be endured at the hands of a prince utterly contemptible for his 



184 THE GIVING OF MAGNA CHAETA. 

folly and cowardice. One is surprised at the forbearance displayed 
by the barons, till they took up arms at length in that confederacy 
which ended in establishing the great charter of liberties. As this 
was the first effort toward a legal government, so is it beyond com- 
parison the most important event in our history, except that Revolu- 
tion, without which its benefits would have been rapidly annihilated. 
The Constitution of England has indeed no single date from which 
its duration is to be reckoned. The institutions of positive law, 
the far more important changes which time has wrought in the 
order of society, during six hundred years subsequent to the great 
charter, have undoubtedly lessened its direct application to our 
present circumstances. But it is still the keystone of English 
liberty. All that has since been obtained is little more than a con- 
firmation or commentary ; and if every subsequent law were to be 
swept away, there would still remain the bold features that distin- 
guish a free from a despotic monarchy. It has been lately the 
fashion to depreciate the value of the Magna Charta, as if it had 
sprung from the private ambition of a few selfish barons, and 
redressed only some feudal abuses. It is indeed of little importance 
by what motives those who obtained it were guided. The real 
characters of men most distinguished in the transactions of that 
time are not easily determined at present. Yet if we bring these 
ungrateful suspicions to the test, they prove destitute of all reason- 
able foundation. An equal distribution of civil rights to all classes 
of freemen forms the peculiar beauty of the charter. In this just 
solicitude for the people, and in the moderation which infringed 
upon no essential prerogative of the monarchy, we may perceive a 
liberality and patriotism very unlike the selfishness which is some- 
times rashly imputed to those ancient barons. And so far as we are 
guided by historical testimony, two great men, the pillars of our 
church and state, may be considered as entitled beyond the rest to 
the glory of this monument : Stephen Langton, archbishop of 
Canterbury, and William, earl of Pembroke. To their temperate 
zeal for a legal government, England was indebted during that 
critical period for the two greatest blessings that patriotic statesmen 
could confer : the establishment of civil liberty upon an immovable 
basis, and the preservation of national independence under the 



THE GIVING OF MAGXA CHARTA. 185 

ancient line of sovereigns, -which rasher men were about to exchange 
for the dominion of France. 

" But the essential clauses of Magna Charta are those which 
protect the personal liberty aud property of all freemen, by giving 
security from arbitrary imprisonment and arbitrary spoliation. 
' No freeman ' (says the 29th chapter of Henry IIJ.'s charter, which, 
as the existing law, I quote in preference to that of John, the varia- 
tions not being very material) ' shall be taken or imprisoned, or be 
disseized of his freehold, or liberties, or free customs, or be outlawed 
or exiled, or any otherwise destroyed; nor will we pass upon him, 
nor send upon him, but by lawful judgment of his peers, or by the 
law of the land. We will sell to no man, we will not deny or delay 
to any man justice or right.' It is obvious that these words, inter- 
preted by any honest court of law, convey an ample security for the 
two main rights of civil society. From the era therefore of King 
John's charter, it must have been a clear principle of our Constitution, 
that no man can be detained in prison without trial. Whether courts 
of justice framed the writ of habeas corpus in conformity to the 
spirit of this clause, or found it already in their register, it became 
from that era the right of every subject to demand it. That writ, 
rendered more actively remedial by the statute of Charles II., but 
founded upon the broad basis of Magna Charta, is the principal bul- 
wark of English liberty ; and if ever temporary circumstances, or the 
doubtful plea of political necessity ', shall lead men to hole on its denial 
with apathy, the most distinguishing characteristic of our Constitution 
will be effaced^ — Hallam's Middle Ages, vol. ii. p. 322 et seq. 



NOTES. 

1. The Former Charters. — " A charter of Henry I., the authenticity of which 
is undisputed, though it contains nothing specially expressed but a remission of 
unreasonable reliefs, wardships, and other feudal burdens, proceeds to declare 
that he gives his subjects the laws of Edward the Confessor, with the emenda- 
tions made by his father with consent of his barons. The charter of Stephen 
not only confirms that of his predecessor, but adds, in fuller terms than Henry 
had used, an express concession of the laws and customs of Edward. Heury H. 



I 

186 THE GIVING OF MAGNA CHARTA. 

is silent about these, although he repeats the confirmation of his grandfather's 
charter. The people, however, had begun to look back to a more ancient stand- 
ard of law. The Norman conquest, and all that ensued upon it, had endeared 
the memory *of their Saxon government. Its disorders were forgotten, or rather 
were less odious to a rude nation than the coercive justice by which they were 
afterward restrained. Hence it became the favorite cry to demand the laws of 
Edward the Confessor ; and the Normans themselves, as they grew dissatisfied 
with the royal administration, fell into these English sentiments. But what 
these laws were, or, more properly perhaps, these customs subsisting in the Con- 
fessor's age, was not very distinctly understood." — Hallam's Middle Ages, vol. 
ii. , p. 320. 

2. Langtorfs Discovery of the Charter of Henry I. to the Barons. — " The 
barons, finding that John was only temporizing with them, convened a general 
assembly of the peers and ecclesiastics at St. Paul's, when Langton, the arch- 
bishop, stood up and addressed the convocation in these terms : ' Ye have heard, 
when at Winchester, before the king was absolved, I compelled him to swear 
that the existing evil statutes should be destroyed, and that more salutary laws, 
namely, those of King Edward the Confessor, should be observed by the whole 
kingdom. In support of these things are ye now convened ; and I here disclose 
to you a newly discovered charter of King Henry I. of England, the which if ye 
are willing to support, your long-lost liberties may be restored in all their 
original purity of character.' The prelate then proceeded to read the charter 
with a loud voice, which so animated the minds of all present, that with the 
greatest sincerity and joy they swore, in the archbishop's presence, that at a 
proper season their deeds should avouch what they had then declared, and that 
even to death itself they would defend those liberties. Langton, on the other 
hand, promised his most faithful assistance in the execution of their arduous un- 
dertaking, and at the same time assured them that the covenant then made 
would reflect honor on their names through successive generations. This, then, 
was the conclusion of the first meeting for securing the king's consent to the 
Magna Charta ; from the decisions of which none of that assembly for a mo- 
ment withdrew their support until the object which they had so long sought was 
obtained, and the liberties which preceding kings refused to grant were entirely 
and wholly theirs." — Thompson's Magna Charta, p. 12, 13. 

3. Case of Be Vesci. — " Henry Knighton, a canon-regular of Leicester abbey, 
who lived in the time of Eichard II., relates an improbable circumstance (to 
others the affair appears extremely probable) particularly connected with this 
baron — De Vesci — wherein he affirms that the incontinence of John was the 
real cause of the general insurrection of the peerage against him, charging him 
with vitiating their wives, and then deriding them. He adds, too, that Eustace 
de Vesci, having married a very beautiful woman — Margaret, daughter of Wil- 
liam, king of Scotland — whom he kept far distant from the court, John became 



TILE GIVIXG OF MAGNA CUARTA. 187 

enamored of her, aud carefully considered how lie might possess her. Sitting 
one day at table with the baron, King John, observing a ring he wore, took it 
from him, and said that he had a similar stone, which he would have set in gold 
of the same pattern ; and having thus procured it, he immediately sent it in De 
Vesci's name to his wife, charging her by that token instantly to come to him, if 
she ever expected to see him alive. Believing this message, she speedily de- 
parted to the court, but on her arrival there, she met her husband, who hap- 
pened to be riding out ; and an explanation having taken place, a disguised 
courtesan was sent to the king as her substitute. Upon John's discovery of this 
deceit, he was so enraged that De Vesci fled into the north, destroying some of 
the king's houses in his passage ; whilst many of the nobles who had experienced 
the same treatment, going with him, they seized upon the king's castles, and at 
length were joined by the citizens of London. As this baron was so inveterate 
an enemy to King John, it is not surprising to find him a principal leader in the 
insurrection that followed." — Thompson's Magna Charta, p. 291. 

4. Simplicity of the Charter. — It is observable that the language of the 
great charter is simple, brief, general without being abstract, and expressed in 
terms of authority, not of argument ; yet commonly so reasonable as to carry 
with it the intrinsic evidence of its own fitness. It was understood by the sim- 
plest of the unlettered age for whom it was intended. It was remembered by 
them; and though they did not perceive the extensive consequences which 
might be derived from it, their feelings were, however, unconsciously exalted 
by its generality and grandeur. 

It was a peculiar advantage that the consequences of its principles were, if 
we may so speak, only discovered gradually and slowly. It gave out on each 
occasion only as much of the spirit of liberty and reformation as the circumstan- 
ces of succeeding generations required, and as their character would safely bear. 
For almost five centuries it was appealed to as the decisive authority on behalf 
of the people, though commonly so far only as the necessities of each case de- 
manded. Its effect in these contests was not altogether unlike the grand pro- 
cess by which nature employs snows and frosts to cover her delicate germs, and 
to hinder them from rising above the earth till the atmosphere has acquired the 
mild and equal temperature which insures them against blights. On the Eng- 
lish nation, undoubtedly, the charter has contributed to bestow the union of 
establishment with improvement. To all mankind it set the first example of 
the progress of a great nation for centuries, in blending their tumultuary democ- 
racy and haughty nobility with a fluctuating and vaguely limited monarchy, so 
as at length to form, from these discordant materials, the only form of free 
government which experience had shown to be reconcilable with widely extend- 
ed dominions. Whoever, in any future age, or unborn nation, mav admire the 
felicity of the expedient which converted the power of taxation into the shield 
of liberty, by which discretionary and secret imprisonment was rendered im- 
practicable, and portions of the people were trained to exercise a larger share 



188 THE GIYISTG OF MAGNA CHAKTA. 

of judicial power than was ever allotted to them in any other civilized state, in 
such a manner as to secure instead of endangering public tranquillity ; — whoever 
exults at the spectacle of enlightened and independent assemblies, who, under 
the eye of a well-informed nation, discuss and determine the laws and policy 
likely to make communities great and happy ; — whoever is capable of compre- 
hending all the effects of such institutions, with all their possible improvements 
upon the mind and genius of a people, is surely bound to speak with reveren- 
tial gratitude of the authors of the great charter. To have produced it, to have 
preserved it, to have matured it, constitute the immortal claim of England on 
the esteem of mankind. Her Bacons and Shakspeares, her Miltons and New- 
tons, with all the truth which they have revealed, and all the generous virtue 
which they have inspired, are of inferior value, when compared with the subjec- 
tion of men and their rulers to the principles of justice ; if, indeed, it be not 
more true that these mighty spirits could not have been formed, except under 
equal laws, nor roused to full activity without the influence of that spirit which 
the great charter breathed over their forefathers. — Mackintosh's England, i. 
219-222. 

5. Effect of the giving of the Charter on King John. — A celebrated English 
historian speaks in the following terms concerning the manner in which the late 
grant of Magna Charta preyed upon the health and the disposition of John : 
' Great reioising," says Holinshed, " was made for this conclusion of peace 
betwixt the king and his barons, the people iuclging that God had touched the 
king's heart, and mollified it, whereby happie daies were come for the realm of 
England, as though it had beene delivered out of the bondage of iEgypt ; but 
were much deceived, for the king having condescended to make such grant of 
liberties, farre contrarie to his mind, was right sorrowful in his heart, cursed his 
mother that bare him, the houre that he was borne, and the paps that gave him 
sucke, wishing that he had received death by violence of sword or knife, in steed 
of naturall norishment : he whetted his teeth, he did bite now on one staffe, 
and now on an other, as he walked, and oft brake the same in pieces when he 
had done, and with such disordered behauior and furious gestures he uttered his 
greefe in such sort that the noblemen verie well perceiued the inclination of his 
inward affection concerning these things, before the breaking up of the councell, 
and therefore sore lamented the state of the realme, gessing what would become 
of his impatiencie and displeasant taking of the matter." 

If this melancholy description was a real picture of John's mind after the 
conclusion of Magna Charta, he was indeed reduced to a miserable state ; and 
this in a twofold sense, for he was not only bent under the weight of his present 
evils, but his peers, perceiving how much his extorted concession oppressed his 
thoughts, and fearful of his swerving from it, were prepared to resort to the same 
violent methods for its preservation as those which they had already made use of 
to gain it. The future actions of John's life were then smouldering in his breast, 
like the sleeping, yet unsubdued fires of a volcano : his intentions were how- 



THE GIYIXG OF MAGNA CHARTA. 189 

ever already suspected by many of bis peers, and while tbe king was secretly 
providing for tbe success of bis plans, tbey were not less anxious for tbe security 
of theirs. Hence arose a mutual mistrust, which tbe sealed deed of Magna Charta 
could by no means dissipate ; but it was regarded, by one party at least, as only 
a temporizing expedient, to put an end to the civil feuds which were spread over 
all the kingdom. In the midst of the schemes which John had commenced to 
render void that engagement, which he could never remember but with agony, 
he died suddenly at Newark, on the 19th of October, 1215, by poison, as it is 
related by some writers, or through tbe infirmities induced by a broken heart 
and constitution, as it is asserted by others. There are but few, however, at the 
present time, who give any degree of credence to the former relation; yet who- 
ever attentively considers the utter hatred which was entertained for John by 
almost all his subjects, and more especially by the ecclesiastics, will perceive but 
little reason why this account should be supposed wholly traditional. The cele- 
brated Rapin, and his annotator Morant, have thought it a sufficient argument 
against its truth to remark that it was improbable for " a man to poison himself 
to be revenged of another ; " but as the mistaken friar believed he was acting in 
the most patriotic and virtuous manner, in rescuing England from a tyrannic 
power, so he gave himself without scruple as a martyr to the cause, confidently 
expecting as a reward, an immediate and eternal beatitude. The same authors 
also observe that this circumstance is neither mentioned by any contemporary 
historians, nor even by any one who lived within sixty years of that time. This 
argument will go, however, but a short distance to prove the falsity of the rela- 
tion. Matthew Paris, and from him the principal account of John's reign is de- 
rived, was too great an enemy of that king to allow of any vices in the opposing 
party ; particularly in that class of society by a member of which this act is said 
to have been committed. During tbe space of sixty years it was in every one's 
memory, and after that period it is more than probable, that, had there not ex- 
isted some foundation for such a report, it could never have descended to later 
times through the medium of written history " — Thompson's Magna Charta t p. 32 
et seq. 

6. Personal Liberty as Secured by the Charter. — " The thirty-ninth article of 
this charter is that important clause which forbids arbitrary imprisonment and 
punishment without lawful trial : ' Let no freeman be imprisoned or outlawed, 
or in any manner injured, nor proceeded against by us, otherwise than by the legal 
judgment of his peers, or by the law of the land.' In this clause are clearly con- 
tained the writ of habeas corpus and the trial by jury — the most effectual securities 
against oppression which the wisdom of man has hitherto been able to devise. It 
is surely more praiseworthy in these haughty nobles to have covered all freemen 
with the same buckler as themselves than npt to have included serfs in the same 
protection : ' We shall sell, delay, or deny justice to none.' No man can 
carry farther the principle that justice is the grand debt of every Government to 
the people, which cannot be paid without rendering law cheap, prompt, and equal 



190 THE GITING OF MAGNA CHAETA. 

Nor is the twentieth section unworthy of the like commendation : ' A freeman 
shall be amerced in proportion to his offence, saving his contenement, and a 
merchant saving his merchandise.' And surely the barons must be acquitted 
of an exclusive spirit who subjoin ' and the villain saving his wagonage.' It 
seems to be apparent from Glanville that villainage was a generic term for ser- 
vitude in the reign of Henry II., so that the villain of the Great Charter must 
have been at least a species of serf. The provision which directs that the 
supreme civil court shall be stationary, instead of following the king's person, 
is a proof of that regard to the regularity, accessibility, independence, and dig- 
nity of public justice, of which the general predominance peculiarly character- 
izes that venerable monument of English liberty. The liberty of coming to 
England and going from it, secured to foreign merchants of countries with whom 
this kingdom is at peace (unless there be a previous prohibition, which Lord 
Coke interprets to mean by act of Parliament), even if we should ascribe it to 
the solicitude of the barons for the constant supply of their castles with foreign 
luxuries, becomes on that very account entitled to regard, inasmuch as the lan- 
guage must be held to be deliberately chosen to promote and insure the purpose 
of the law." — Mackintosh. 



ittapa Cljatta. 



John, by the grace of God, king of England, lord of Ireland, 
duke of Normandy and Atpitaine, and count of Anjou ; to his 
archbishops, bishops, abbots, earls, barons, justiciaries, foresters, 
sheriffs, governors, officers, and to all his bailiffs and liegemen, 
greeting : 

Know ye, that in presence of GOD, and for the health of our 
soul and the soul of our ancestors and heirs, and to the honor of 
God and to the exaltation of His Holy Church, and for the amend- 
ment of our kingdom ; by advice of our venerable fathers, Stephen, 
archbishop of Canterbury, primate of all England, and cardinal 
of the Holy Roman Church ; Henry, archbishop of Dublin ; Wil- 
liam of London, Peter of Winchester, Jocelyn of Bath and Glaston- 
bury, Hugh of Lincoln, Walter of Worcester, William of Coventry, 
and Benedict of Rochester, bishops; Master Pandulph, our lord 
the Pope's subdeacon and servant • Brother Aymeric, master of the 
Temple in England ; and the noblemen William Marescall, earl of 
Pembroke, William earl of Salisbury, William earl of Warren, 
William earl of Arundel, Alan de Galloway, constable of Scot- 
land, Warin Fitzgerald, Peter Fitzherbert, Hubert de Burgh, 
seneschal of Poictou, Hugh de Neville, Matthew Fitzherbert, 
Thomas Basset, Alan Basset, Philip de Albiney, Robert de 
Roppelaye, John Marescall, John Fitzhugh, and others our liege- 
men ; we have granted to GOD, and by this our present charter 
confirmed, for us and our heirs forever : 

1. That the English church shall be free and enjoy her whole 



192 MAGNA CHAETA. 

liberties inviolate. And that we will have them so to he observed, 
appears from this that of our mere good will we granted, and by our 
charter confirmed, the freedom of elections which was reckoned most 
necessary for the English church, and obtained the confirmation 
thereof from our lord the Pope Innocent the Third, before the 
discord which has arisen between us and our barons ; which charter 
we will ourselves observe, and will that it be observed in good faith 
by our heirs forever. We have also for us and our heirs forever 
granted to all the freemen of our kingdom, all the underwritten 
liberties to have and to hold to them and their heirs from us and 
our heirs. 

2. If any of our earls or barons, or others holding lands of us 
in capite by military service shall die, and when he dies his heir 
shall be of full age and owe a relief, the heir shall have his inherit- 
ance by the ancient relief; the heir or heirs of an earl for a whole 
earl's barony, by one hundred pounds ; of a baron for a whole 
barony, by one hundred pounds (marks) ; of a knight for a whole 
knights fee, by one hundred shillings at most; and he who owes a 
less relief shall pay less according to the ancient custom of his fee. 

8. But if the heir shall be under age, and shall be in ward, when 
he comes of age he shall have his inheritance without relief or fine. 

4. The warden of the heir under age shall take only reasonable 
issues, customs, and services ; and that without destruction or waste 
of men or things. And if we shall commit the guardianship of 
these lands to the sheriff or any other who is answerable to us for 
their revenues, and he shall make destruction or waste on the ward 
lands, he shall make satisfaction ; and the lands shall be intrusted 
to two lawful and discreet men of that fee, who shall be answerable 
to us. Or, if we shall give or sell the wardship of lands to any 
one, and he shall make destruction or waste, he shall lose his ward- 
ship, and the lands shall be intrusted to two discreet men of that fee, 
who shall be answerable to us as aforesaid. 

5. The warden, for as long as he shall hold the land, shall, from 
the revenues thereof, maintain the houses, parks, warrens, ponds 
mills, and other things thereto pertaining ; and he shall restore to 
the heir when he comes of age his whole land stocked with ploughs 



MAGNA CHAETA. 193 

and carriages according as the time of wainage shall require, and 
the revenue of the estate will reasonably allow. 

6. Heirs shall be married without disparagement of their rank, 
yet in such wise, that before the marriage is contracted the blood 
relations of the heir shall be acquainted with it. 

7. A widow, after the death of her husband, shall forthwith and 
without difficulty have her marriage and her inheritance ; nor shall 
she give anything for her dower, marriage, or her inheritance which 
she and her husband may have held on the day of his decease ; and 
she may remain in the house of her husband forty days after his 
death, within which term her dower shall be assigned. 

8. No widow shall be distrained to marry herself while she shall 
desire to live without a husband ; but she shall give security not to 
marry without the king's assent, if she holds of him ; or without the 
consent of the lord of whom she holds, if she holds of another. 

9. Neither we nor our bailiffs shall seize any land or rent for 
any debt, so long as the chattels of the debtor are sufficient for the 
payment of the debt. Nor shall the sureties of the debtor be 
distrained, so long as the principal debtor is sufficient for the pay- 
ment of the debt. And if the principal debtor fail in the payment 
of the debt, not having wherewithal to discharge it, then shall the 
sureties be answerable for the debt. And, if they will, they shall 
have the lands and rents of the debtor until they shall be satisfied 
for the debt they have paid for him ; unless the principal debtor 
shall show himself acquitted thereof against the said sureties. 

10. If any one shall have borrowed any thing from the Jews, 
more or less, and shall die before that debt be paid, the debt shall 
pay no interest so long as the heir shall be under age, of whomso- 
ever he may hold ; and if that debt shall fall into our hands, we will 
take nothing but the chattel named in the bond. 

11. And if any one shall die indebted to the Jews, his wife shall 
have her dower and shall pay nothing of that debt ; and if children 
of the deceased shall remain, under age, necessaries shall be pro- 
vided for them according to the tenement which belonged to the 
deceased ; and out of the residue the debt shall be paid, saving the 



194 MAGNA CHAETA. 

rights of lords (from whom the lands are held). In like manner let 
it be done with debts due to others than Jews. 

12. No scutage nor aid shall be imposed in our kingdom ex- 
cepting for the ransom of our person, to make our eldest son a 
knight, and once to marry our eldest daughter ; and for these none 
but a reasonable aid shall be demanded. So, likewise, let it be con- 
cerning the aid of the city of London. 

13. And the city of London shall have all its ancient liberties 
and free customs, as well by land as by water. Furthermore, we 
will and grant that all other cities, burghs, towns, and ports, have 
all their liberties and free customs. 

14. And for the holding of the common council of the kingdom 
to assess aids other than in the three aforesaid cases, and for the 
assessing of scutages, we will cause the archbishops, bishops, abbots, 
earls, and greater barons to be summoned individually by our 
letters ; moreover, we will cause all others in general who hold of 
us in capite to be summoned by our sheriffs and bailiffs on a certain 
day, to wit: forty days at least (before the meeting), and to a 
certain place ; and in all letters of summons, we will declare the 
cause of the summons. And the summons being thus made, the 
business shall proceed on the day appointed, according to the 
advice of those who shall be present, although all that shall be 
summoned may not come. 

15. We will not, for the future, give leave to any one to take 
an aid from his own free tenants, unless to redeem his own body, 
to make his eldest son a knight, and once to marry his eldest 
daughter ; and for these none but a reasonable aid shall be paid. 

16. No man shall be distrained to do more service for a knight's 
fee or other free tenement, than what is justly due therefrom. 

17. Common pleas shall not follow our court, but shall be 
holden in some certain place. 

18. Trials upon the writs of novel disseisin, mort cPancestre, and 
darrein presentment, shall be taken only in their proper counties, 
and after this manner : We, or, if we shall be out of the realm, 
our chief justiciary, will send through every county, four times in 



MAGNA CHARTA. 195 

the year, two justiciaries, who, with four knights of the county, 
elected by the county, shall hold the aforesaid assizes in the county, 
on the county day, and at the county place. 

19. And if the aforesaid assizes cannot be held on the county 
day, let as many of the knights and freeholders, who have been 
present at the county court, remain behind, as shall be sufficient to 
conduct the trials, according as the business shall be, more or 
less. 

20. A freeman shall not be amerced for a slight offence, but in 
proportion to the degree of the offence ; and for a great offence he 
shall be amerced according to its magnitude, saving to him his 
contenement ; likewise, a merchant shall be amerced, saving to him 
his merchandise ; and a villain in the same way, saving his wainage 
if he falls under our mercy ; and none of the aforesaid amercia- 
ments shall be assessed, but by the oath of honest men of the 
neighborhood. 

21. Earls and barons shall not be amerced but by their peers 
and according to the degree of their offence. 

22. No clerk shall be amerced for his lay tenement but in the 
manner of the others aforesaid, and not according to the quantity of 
his ecclesiastical benefice. 

23. Neither town nor man shall be distrained to build bridges 
over rivers, save those who anciently and rightfully are bound to 
do it. 

24. No sheriff, constable, coroners, or other our bailiffs shall 
hold pleas of our crown. 

25. All counties, hundreds, trethings, and wapentakes shall stand 
at their old rents without increase, except in our demense manors. 

26. If any one, holding of us a lay fee, dies, and the sheriff or 
our bailiff shall show our letters patent of summons concerning a 
debt due to us from the deceased, it shall be lawful for the sheriff 
or our bailiff to attach and register the chattels of the deceased 
found upon his lay fee, to the amount of that debt, by the view of 
lawful men, so that nothing be removed until our whole debt be 
paid : and the rest shall be paid to the executors to fulfil the will 



196 MAGNA CHARTA. 

of the deceased ; and if there be nothing due from the deceased to 
us, the chattels shall remain to the deceased, saving to his wife and 
children their reasonable shares. 

27. If a freeman shall die intestate, his chattels shall be dis- 
tributed by the hands of his nearest relations and friends, by 
view of the church, saving to every one the debts which the de- 
ceased owed. 

28. No constable or other our bailiff shall take the corn or 
other goods of any man unless he instantly pay money for it, or 
obtain a respite of payment by the free will of the seller. 

29. No constable (of a castle) shall distrain any knight to give 
money for castle guard, if he be willing to do guard in his own 
person, or by another able man, if he himself, for reasonable cause, 
cannot perform it. And if we shall have led or sent him to the 
army, he shall be excused from castle guard according to the time 
he shall be in the army by our order. 

30. No sheriff nor bailiff of ours, nor any other person, shall 
take the horses or carts of any freeman, for carriage, without the 
free consent of the said freeman. 

31. Neither we nor our bailiffs, will take another man's timber 
for our castles or other uses, unless by the consent of the owner of 
the timber. 

32. We will not retain the lands of those who have been con- 
victed of felony, but for one year and a day, and then they shall be 
delivered to the lord of the fee. 

33. All wears shall, for the future, be wholly removed from the 
Thames and Medway, and throughout all England except on the 
seacoast. 

34. The writ which is called <prcecipe shall not for the future be 
granted to any one of any tenement whereby a freeman may lose 
his court. 

35. Throughout our whole kingdom there ^hall be one measure 
of wine ; and one measure of ale ; and one measure of corn ; namely, 
the quarter of London ; and one width of dyed cloths, and russets, 



MAGNA CIIAETA. 197 

and halberjects, namely, two ells within the lists. And it shall be 
with weights as with measures. 

36. From henceforth nothing shall be given or taken for the 
writ of inquest of life or limb ; but it shall be given without charge 
and not denied. 

37. If any man hold of us by fee-farm, socage, or burgage, and 
hold land of another by military service, we shall not have the 
wardship of the heir or of the land which belongs to another man's 
fee on account of the aforesaid fee-farm, socage, or burgage ; nor 
shall we have the wardship of the free-farm, socage, or burgage, un- 
less the fee-farm owe military service. We shall not have the ward- 
ship of any man's heir, or of the land he holds of another on ac- 
count of any petty serjeantry he holds of us by the service of 
giving us daggers, arrows, or the like. 

38. No bailiff shall henceforth put any man to his law upon his 
own single accusation without credible witnesses produced for that 
purpose. 

39. No freeman shall be taken, or imprisoned, or dispossessed, 
or outlawed, or banished, or in any way destroyed ; nor will we 
pass upon him, nor commit him, but by the lawful judgment of his 
peers, or by the law of the land. 

40. To no man will we sell, to none will we delay, to none will 
we deny right or justice. 

41. All merchants shall have safety and security in coming into 
England and departing out of England, and in tarrying and travel- 
ling through England, as well by land as by water, to buy and sell 
without any evil tolls, according to the ancient and just customs ; 
except in time of war, when they shall be of any nation at war 
with us. And if any such be found in our land at the beginning 
of a war, they shall be apprehended without injury of their bodies 
or their goods, until it shall be known to us or our chief justiciary 
how the merchants of our country are treated who are found in the 
country at war with us. And if ours be safe there, the others shall 
be safe in our land. 

42. Henceforth it shall be lawful to any person to go out of our 



198 MAGKA CHAKTA. 

kingdom and to return safely and securely, by land or by water, 
saving his allegiance to us, unless for some short space in time of 
war, for the common good of the kingdom ; except prisoners and 
outlaws by the law of the land, people of a country at war with 
us, and merchants who shall be treated as aforesaid. 

43. If any man hold of any escheat, as of the honor of Wal- 
lingford, Nottingham, Boulogne, Lancaster, or any other escheats 
which are in our hand and are baronies, and shall die, his heir 
shall not give any other relief, nor do any other service to us, than 
he would to the baron if the barony were in a baron's hand ; and 
we will hold it in the same way in which the baron held it. 

44. Men who dwell without the forest shall not hereafter come 
before our justiciaries of the forest on a common summons, unless 
they are parties to a plea or sureties for any who have been appre- 
hended for something concerning the forest. 

45. We will not make justiciaries, sheriffs, or bailiffs except of 
such as know the law of the land, and are disposed duly to ob- 
serve it. 

46. All barons who have founded abbeys which they hold by 
charter of the kings of England, or by ancient tenure, shall have 
the custody thereof when they fall vacant, as they ought to have. 

47. All forests which have been made in our time shall be im- 
mediately disforested ; and it shall be so done with the embank- 
ments which have been erected as obstructions to the rivers in our 
reign. 

48. All evil customs of forests and warrens, foresters and war- 
reners, sheriffs and their officers, embankments and their keepers, 
shall forthwith be inquired into in every county by twelve sworn 
knights of the same county, who must be elected by the good men 
of the county ; and within forty days after the holding of the in- 
quisition they shall, by the said knights, be utterly abolished so as 
never to be restored ; provided that we be first notified thereof, or 
if we be not in England, our chief justiciary. 

49. We will forthwith restore all hostages and charters which 



MAGNA CHARTA. 199 

have been delivered to us by the English in security of peace and 
faithful service. 

50. We will remove from their bailiwicks the kinsmen of Gerard 
de Athyes, so that henceforth they shall have no bailiwick in Eng- 
land ; Engelard of Cygony ; Andrew, Peter, and Gyone de Chan- 
cell ; Gyone de Cygony ; Geoffrey de Martin and his brothers ; 
Philip Mark and his brothers, and Geoffrey his brother, and all 
their retinue. 

51. And immediately after the conclusion of peace we will 
remove from the kingdom all foreign knights, crossbowmen, and 
mercenary soldiers who have come with horses and arms to the 
injury of the kingdom. 

52. If any man hath been by us deprived or dispossessed, with- 
out the lawful judgment of his peers, of lands, castles, liberties, or 
rights, we will forthwith make restitution ; and if any dispute arise 
on this head, then the matter shall be settled by the judgment of 
five and twenty barons hereinafter mentioned for the preservation 
of the peace. Concerning all those things of which any man hath 
been deprived or dispossessed, without the legal judgment of his 
peers, by King Henry our father, or King Richard our brother, 
which we hold in our own hand or others hold under our warrant, we 
shall have respite until the common term of the Crusaders ; except 
those concerning which a plea has been moved, or an inquisition 
made by our direction, before our taking the cross ; but so soon as 
we shall return from our expedition, or if by chance we should not 
go upon our expedition, we will forthwith do therein full justice. 

53. We shall have like respite, and upon the like conditions, in 
doing justice by disforesting the forests which Henry our father or 
Richard our brother afforested , and the same concerning the ward- 
ship of lands belonging to another man's fee, of which we have 
hitherto had wardship on account of some fee held by the tenant from 
us by military service ; and concerning abbeys founded in a fee 
which is not ours, and in which the lord hath claimed a right ; and 
when we shall have returned, or if we should not go upon our ex- 
pedition, we shall forthwith do full justice to complainants in these 
matters. 



200 MAGKA CHARTA. 

54. No man shall be taken or imprisoned on the appeal of a 
woman for the death of any other than her husband. 

55. All fines that have been made unjustly and contrary to the 
law of the land, and all amerciaments imposed unjustly, contrary 
to the law of the land, shall be wholly remitted ; or order shall 
therein be taken by the five and twenty barons hereinafter men- 
tioned for the security of the peace, or by the verdict of the greater 
part of the.m, together with the aforesaid Stephen, archbishop of 
Canterbury, if he can be present, and such others as he may think 
fit to bring with him ; but if he cannot be present, the business 
shall nevertheless proceed without him ; yet so, that if any one or 
more of the aforesaid five acd twenty barons have a like plea, they 
shall be removed from that particular trial, and others elected and 
sworn for that trial only by the residue of the five and twenty shall 
be substituted in their room. 

56. If we have deprived or dispossessed any Welshmen of their 
lands, or liberties, or other things, without a legal verdict of their 
peers, restitution shall forthwith be made ; and if any dispute shall 
arise upon this head, then let it be determined in the Marches by 
the judgment of their peers • for tenements of England, according 
to the law of England ; for tenements of Wales, according to the 
law of Wales ; and for tenements of the Marches, according to the 
law of the Marches. The Welsh shall do the same to us and to 
our subjects. 

57. Also, concerning those things of which any Welshman hath 
been deprived or dispossessed without the lawful judgment of his 
peers, by King Henry our father, or King Richard our brother, and 
which we hold in our hand or others hold under our warrant, we 
shall have respite until the common term of the Crusaders, except 
for those concerning which a plea hath been moved, or an inquisi- 
tion made by our command before taking the cross. But as soon 
as we return upon our expedition, or if by chance we should not 
go upon our expedition, we shall immediately do full justice therein, 
according to the laws of Wales and of the parts aforesaid. 

58. We will forthwith release the son of Llewellyn, and all the 



MAGNA CHAETA. 201 

charters and hostages of Wales which were delivered to us for se- 
curity of the peace. 

59. We will do to Alexander, King of Scotland, concerning 
the restoration of his sisters and hostages, and concerning his liber- 
ties, and concerning his rights, according to the form in which we 
do to our other barons of England, unless it ought otherwise to be 
according to the charters which we have from William, his father, 
the late King of Scots ; and this shall be by the judgment of his 
peers in our court. 

60. All the aforesaid customs and liberties which we, for our 
part, have granted to be holden in our kingdom by our people, let 
all within the kingdom, as well clergy as laity, observe toward 
their vassals. 

61. But forasmuch as we have granted all these things afore- 
said to GOD, both for the amendment of our kingdom and for 
the better settling of the discord which has sprung up between us 
and our barons ; and forasmuch as we desire that these things 
should remain in perfect and complete stability forever ; therefore 
we do make and grant them the security underwritten, to wit : 
that the barons may elect twenty-five barons of the kingdom, 
whom they please, who shall, with their whole power, observe, 
keep, and cause to be observed, the liberties which we have granted 
and confirmed to them by this our charter : that is to say, if we or our 
justiciary, or our bailiffs, or any of our officers, shall have injured 
any one in anything, or shall have transgressed any article of peace 
or security, and the injury shall be shown to four of the aforesaid 
five and twenty barons, the four barons shall come to us, or to our 
justiciary if we shall be out of the kingdom, and making known to us 
the wrong committed, shall petition us to cause it to be redressed 
without delay. And if we, or our justiciary if we be not in the 
kingdom, do not redress the wrong within the term of forty days, 
to be reckoned from the time when we were notified thereof, or 
when our justiciary was notified, if we were not within the king- 
dom, the aforesaid four barons shall lay the cause before the 
residue of the five and twenty barons ; and they, the five and 
twenty barons, with the community of the whole land, shall harass 

9* 



202 MAGNA CHAETA. 

and distress us in whatever ways they shall be able, by the capture 
of our castles, lands, and possessions, and by any other means 
they can, until the injury have been redressed according to their 
judgment : saving harmless our own person and the persons of 
our queen and children : and when the wrong hath been redressed, 
they shall behave to us as they have done before. And whoever 
of our land shall please, may swear that he will obey the com- 
mands of the aforesaid five and twenty barons in accomplishing all 
these aforesaid things, and that, together with them, he will harass 
us according to his power. And we do publicly and freely grant, 
to every man who chooses, leave to take this oath, nor will we ever 
forbid any man to take it. But all men of our land, who, of them- 
selves and of their own choice, shall be unwilling to swear to the 
five and twenty barons to distress and harass us, together with 
them, we will compel by our command to swear as is aforesaid. 
And if any of the five and twenty barons shall die, or leave the 
country, or in any other way be hindered from the execution of the 
things aforesaid, then the rest of the aforesaid five and twenty 
barons shall, at their pleasure, choose another in his stead, who 
shall be sworn in the same manner as the rest. Now, in all the 
things which are intrusted to be executed by these five and twenty 
barons, if it happen that the five and twenty shall be present, and 
shall disagree concerning any matter; or if some of them, having 
been summoned, be unwilling or unable to attend, that which the 
greater part of those who may be present shall determine or decree, 
shall be held as firm and valid as if all the twenty-five had been 
agreed therein ; and the aforesaid five and twenty men shall swear 
that they will faithfully observe all the aforesaid things, and to the 
utmost of their power cause them to be observed. And neither by 
ourself nor through another will we obtain anything from any man, 
through which any of these grants and liberties may be revoked or 
lessened. And if any such thing shall have been obtained, it shall 
be null and void ; and we will never use it, through ourself or 
through another. 

62. And to all men we have fully remitted and pardoned all 
the ill wills, resentments, and rancors, which have arisen between 



MAGNA CHARTA. 



203 



us and our subjects, lay and clerical, from the commencement of 
our disagreement. Moreover, we have fully remitted, and so far 
as in us lies, have fully pardoned to all the clergy and laity, all 
transgressions, committed by occasion of the same disagreement, 
from the Easter of the sixteenth year of our reign to the conclusion 
of the peace. And further, we have caused testimonial letters 
patent to be made for them concerning this security and the afore- 
said grants from the lord Stephen, archbishop of Canterbury, the 
lord Henry, archbishop of Dublin, and from Master Pandulph. 

63. Wherefore we do will and firmly do command that the 
Church of England be free ; and that all men in our kingdom have 
and hold all the aforesaid liberties, and rights, and grants, well and 
in peace, freely and quietly, fully and wholly, as aforesaid, to them 
and their heirs, from 
us and our heirs for- 
ever. It is also 
sworn, as well on 
our part as on that 
of the barons, that 
all the things afore- 
said shall be observ- 
ed in good faith and 
without evil inten- 
tion. Witnessed by 
the above and many 
others. Given by 
our own hand, in 
the mead called 
Runnymede, b e - 
tween Windsor and 
Staines, this fif- 
teenth day of June, 
in the seventeenth 
year of our reign. 




Covenant of Bmtritg. 



This is the covenant made between our lord John, king of Eng- 
land, on the one part, and Robert Fitzwalter, elected marshal of 
GOD and of the Holy Church in England, and Richard earl of 
Clare, Geoffrey earl of Essex and Gloucester, Roger Bigod earl of 
Norfolk and Suffolk, Saher earl of Winchester, Robert earl of 
Oxford, Henry earl of Hereford, and the barons underwritten : 
that is to say, William Marshall the younger, Eustace de Vescy, 
William de Mowbray, John Fitz Robert, Robert de Mont-Begon, 
William de Lauvalay, and other earls and barons and freemen of 
the whole kingdom, on the other part : namely, That they, the 
earls and barons, and others before written, shall hold the custody 
of the city of London in bail from our lord the king ; saving that 
they shall clearly render all the debts and revenues within the 
same to our lord the king, until the term of the Assumption of the 
Blessed Virgin Mary, in the seventeenth year of his reign. 

And the lord of Canterbury shall hold, in like manner of bail, 
from our lord the king, the custody of the tower of London, to the 
aforesaid term : saving to the city of London its liberties and free 
customs, and taking his oath, in the keeping of the said tower, that 
our lord the king shall, in the meanwhile, not place a guard, or 
other forces, in the aforesaid city, nor in the tower of London. 

And that, also, within the aforesaid term, the oaths to the 
twenty-five barons be tendered throughout all England, as it is 
tendered in the charter granted concerning the liberties and secu- 
rity of the kingdom, or to the attorneys of the twenty-five barons, 
as it is contained in the letters granted concerning the election of 
twelve knights for abolishing evil customs of the forests, and 



COVENANT OF SECURITY. 205 

others. And moreover, within the said term, all the other 
demands which the earls, barons, and other freemen do ask of our 
lord the king, which he himself has declared to be granted to 
them, or which by the twenty-five barons, or by the greater part 
of them, shall be judged proper to be granted, are to be given 
according to the tenor of the said charter. And if these things 
shall be done, or if our lord the king, on his part, shall agree to do 
them within the term limited, then the city and tower of London 
shall, at the same term, be delivered up to our lord the king ; 
saving always to the aforesaid city its liberties and free customs, as 
it is before written. And if these things shall not be done, and if 
our lord the king shall not agree to do them within the period afore- 
said, the barons shall hold the aforesaid city, and the lord arch- 
bishop the tower of London, until the aforesaid deed shall be 
completed. And in the meanwhile, all of both parts shall recover 
the castles, lands, and towns which have been taken in the begin- 
ning of the war that has arisen between our lord the king and the 
barons. 



NOTES ON THE GREAT CHARTER 



Introduction. — The four causes for granting Magna Charta are the prominent 
parts of the opening : the honor of God, the benefit of the king's soul — as a 
pious action — the exaltation of the church, and the amendment of the kingdom. 
The last expression to be observed is, that the words spontaneously and of our 
own free will, were added in the subsequent charter of Henry III. because King 
John endeavored to avoid the execution of his grant, asserting that it had been 
extorted from him by force. 

Ch. I. — The expression to grant unto God, with which this section commen- 
ces, was an ancient legal phrase, employed when anything was bestowed for the 
use and maintainance of the church ; since the thing so given was supposed to 
be granted to God, as it was for his service. King John was the first sovereign 
who used the plural pronoun We in his grants, as all the preceding monarchs 
wrote in the first person singular. 

Ch. II. — This section of the Great Charter refers to an ancient law connected 
with feudal tenures, by which it was supposed that the lord of the estate was the 
real proprietor of all : though the tenant, while he was able to do service for 
the land, held it in possession and enjoyed its products. The grants issued by 
the superior lord lasted for life only ; and, upon the decease of a tenant, if his 
heir were not of an age sufficient to discharge all the services belonging to that 
fee, or estate, it still remained in the possession of the chief lord until he should 
be able to do so ; for, it must be observed, that these services were, for the most 
part, doing duty in the field. 

The most ancient relief is called a heriot, from the Saxon here-geat, which 
literally signifies armor and weapons. " A tribute," says Somner, in his ' Dic- 
tionarium Saxonico-Latino-Anglicum,* " of old given to the Lord of a manor, for 
his better preparation towards warre. We now call it a Heriot, and understand 
by it, the best horse, ox, cow, or such like chattell, which the Tenant hath at the 
houre of his death, due to the Lord by custome." It was probably from this cir- 
cumstance, then, that the original reliefs were ordained to be paid in armor : 
and by the laws of King William the First, the relief of an Earl was eight horses 
saddled and bridled, four helmets, four coats of mail, four shields, four spears. 
four swords, four chasors, or hunting horses, and one palfrey bridled and saddled. 
A baron was to give half as much with the palfrey. A vavasor, the next degree 
to a peer, was to present his lord with his best horse, his helmet, cout of mail, 



NOTES ON THE GREAT CHARTER. 207 

shield, spear, and sword, or instead of these one hundred shillings. A country- 
man's relief was his best beast, and he who farmed his lands gave a year's rent. 
Thus there was originally a scale of settled sums for the lands of the different 
degrees, from the highest downward ; but previous to John's reign, especially 
in those of King William Rufus and Henry II. reliefs became arbitrary, and 
often, under the title of a reasonable relief, considerable oppressions were im- 
posed. The sums mentioned in the text would be about twenty times their 
value in modern currency; ten times in allowing for the difference of coin, and 
ten more in the quantity and worth of the article to be procured. The ancient 
relief, however, to which the present chapter of Magna Charta alludes, was the 
giving up the fourth part of the value of an earldom, a barony, or a knight's 
fee for one year. 

Ch. III. — The intent of this chapter is to preserve the old statute of the 
common law regarding military service, by which it is provided that the lord of 
an estate cannot both have guardianship of the heir and his land, and also a re- 
lief when he shall come of age to do knight's or warlike service for it. For this 
cause, then, if a person held lands of the king in chief, and different lands under 
some other lord, both by military duty ; the king by his prerogative had the 
wardship of all, and, upon the heir's coming of age, a relief was paid to the 
other by way of recompense. 

Ch. IY. — The intent of this and the following chapter of the great charter, 
was to prevent the sovereign from placing rich estates of heirs under age in the 
custody of mercenary men, who might exact heavier rents and services than the 
land had ever before been rated at ; or who could destroy or neglect any of the 
property so committed to them. 

Guardians of estates held by military service were, as Lyttleton observes, of 
two kinds : a guardian in right, which was when the superior lord upon the de- 
cease of his tenant became, in virtue of his title, the possessor of the heir and 
his lands ; and a guardian mfact, which is where the superior lord, after having 
made his claim, grants the wardship to another, who comes into possession by the 
force of that grant. This latter species of guardian is that mentioned in the 
text. 

Issues, or as the original word may be better translated, outgoings, signify the 
rents and profits issuing from the lands or tenements of the ward, which are to 
be taken by the guardian in a reasonable manner, according to what is allowed 
by law. Customs are privileges due or appendant to the lands of the ward, such 
as advowsons or presentations to ecclesiastical livings, commons, w r aifs and 
strays, tenant fines, &c. Services were those duties accruing to the lord from his 
copyhold tenants, which were of the nature of feudal services, being annual and 
accidental, as well as comprising homage and fealty. The reasonableness of these 
various provisions was to be decided by the king's justices. 

With regard to the saving clause in this chapter, concerning the destruction 
and waste of the men or goods, it will be proper to explain it, as it concerns the 
legal signification of those terms. Waste is committed in neglecting to repair 



208 3S"OTES 02* THE GEE AT CHAETEE. 

houses, in damage done to gardens, and in the cutting down of timber trees. 
Destruction of goods is cutting down of young timber plants, and any other 
kind of trees set for the defence of the house. Exile, or destruction of men, is 
when by any oppression they are reduced to poverty, and forced to quit their 
dwellings upon the estate. It should be observed that the fair profits of the 
land were claimed by the lord of an heir under age, that out of them he might 
provide some person to supply his defect of service until he should be able to 
act for himself. ( Wright?) 

Ch. Y. — The laws enforced by this chapter of Magna Charta are similar to 
the agreement of repair which exists between a landlord and tenant for years, 
as may be seen by a reference to Sir Edward Coke's Commentary upon Littleton, 
Book I., chap, vii., sec. 67. 

Ch. VI. — The tenure of military service was connected with the right of a 
superior lord to bestow his tenants in marriage ; or at least his consent was re- 
quired before any union could take place with one of his followers, and the rea- 
son for this was certainly a fair one ; because, according to the principles of feu- 
dal tenures, it was proper to prevent any person who enjoyed a part of the land 
from bringing into the joint possession of it either an enemy of the superior 
lord, or one of a family at enmity with bim. If therefore a military tenant 
married without his lord's consent, his fee was forfeited. 

A female heir might be given in marriage by her father at the age of twelve, 
but fourteen was called her age of discretion, or time when she might consent or 
disagree to marriage under a feudal lord ; but if her ancestor died before she 
had reached the age of fourteen or was married, then she was to remain in ward 
until the age of sixteen, in which two years it was supposed that her lord might 
tender lo her a suitable marriage. This if he neglected to do, at the end of the two 
years she could enter on possession of her estate. If, on the contrary, she were 
married under the age of fourteen, in the life of her progenitor, and was also 
under that age at his death, then the lord was to have wardship of her until she 
attained to it, when her husband and she were immediately to enter on posses- 
sion of her lands. The age of discretion for a male heir was fourteen, at which 
time he might consent or disagree to any marriage his lord had formerly provi- 
ded for him ; and the old law was such that if he did then disagree to such mar- 
riage, although his lands remained in wardship until he should come to the full 
age of twenty- one, yet he was free from ward as to his body, and his lord had no 
right to marry him a second time. 

One who gave his daughter in marriage without the consent of his lord, for- 
feited his inheritance. 

During the time, however, that these laws existed, the present chapter of 
Magna Charta was intended as an ancient institute of the common law, and 
was doubtless inserted as a provision against mercenary or interested guardians 
involving their wards in any improper connection, by way of securing the estates 
for themselves. There were many kinds of disparagements ; but for any of 
these four principal ones, the heir, if married before the age of fourteen, when 



NOTES ON THE GREAT CHARTER. 209 

he arrived at that age might disagree to the match, and it should then be dis- 
solved by law : firstly, the marriage might be refused, if the party provided 
were an idiot or lunatic ; secondly, if they were of an inferior degree, one of 
attainted blood, or illegitimate ; thirdly, if they were imperfect in person, or de- 
formed ; and fourthly, if the bride were a widow, because that was considered as 
bigamy, and precluded benefit of clergy. The latter, however, was provided 
against in 1541, the first year of Edward VI., cap xii. § 16, by an act entitled 
" An Act for the repeal of certain statutes concerning treasons, felonies, &c," in 
which it was declared that benefit of clergy should be allowed to any persons, 
notwithstanding their marriage with widows. 

Cus. VII., VIII. — Before the Norman conquest, a widow had no power to 
marry again until one year should have expired after the death of her husband. 

The word maritagium, as it occurs in the original text, is a technical expres- 
sion signifying liberty to marry again, whereby the year of mourning was set 
aside, so far as the law was concerned. The whole of this and the succeeding 
chapter relates to the general right of widows, as they regarded the feudal sys- 
tem ; for as females at that period possessed no personal fortune to entitle them 
to a jointure, so the immediate provision of dower for their maintenance was 
of the greatest importance. The widow, however, might remain in her late hus- 
band's dwelling (if it were not a castle) for forty days, which time was called 
her quarantine, and which began on the day of his death, and continued to thir- 
ty-nine days after ; if during that time she married, her widowhood was then 
past, and she forfeited her dower. 

"With respect to the quantity of the dower, when granted, it was generally the 
third part of the deceased's possessions, and thence called dos legitime/,, or law- 
ful dower. 

Ch. IX. — This is the first act of grace contained in the great charter ; for by 
the common law, the king had execution of the body, lands, and goods of the 
debtor, and he might also, by his prerogative, distrain for his rent in any other 
lauds which his tenant possessed, although they were not of his own fee. A 
similar process was likewise used by many of the barons, and this was after- 
ward carried to such an extent that they levied their distresses in the common 
streets and highways. 

Ch. X. — By the laws of King Edward the Confessor, and the testimony of 
Glenville and others, it was anciently not lawful for Christians to take any 
sort of usury, so that interest for money was paid to the Jews alone, and to 
them only while the ancestor was living, or after his successor came to 
full age. 

Ch. XI. — The expression in the text, saving the rights of the lords, is a 
provision that all their lawful customs and services are not barred by this 
protection of a tenant's property ; and it infers that if they be neglected 
or denied, the lord of the fee might distrain for wardship, relief, or 
marriage. 

Ch. XII. — This chapter is to be found in its fullest extent in the great 



210 NOTES ON THE GEE AT CHAKTEK. 

charter of King John only ; and its subject is the levying of scutage, a tax 
anciently paid by such as held lands by knight's service, toward furnishing the 
royal army, at the rate of one, two, or three marks for every knight's fee. It 
was originally derived of the Saxon words scyld and penig, the shield-penny ; 
whence it was translated into the Norman French escuage, 'and the law Latin 
expression of scutagium, or service of the shield : this, says Lord Coke, " was 
in respect of the scutum, or shield, which ought to be borne both by lord and 
tenant in such wars." 

The kings of England, therefore, anciently taking advantage of, or prob- 
ably complying with this custom of their tenants, and sometimes on occa- 
sion of war, assessed without summons a moderate sum upon every knight's 
fee, as an escuage, wherewith they might provide foreign stipendiaries to 
supply their defect of service. But as this species of escuage was really a 
previous commutation between a tenant and his lord, and not incurred as a 
fine, it was not long acceded to ; and in the reign of King John it was not only 
insisted upon as an undoubted right of the king's tenants, but the barons 
procured the insertion of the present chapter of Magna Charta, that it should 
be imposed only by the common council of the kingdom. 

The amount of escuage assessed upon any estate was, of course, according 
to the extent of it ; this being estimated sometimes by the number of knight's 
fees it contained, and at others by the value of the land. 

This chapter in King John's charter also provides for another privilege 
claimed by the superior lords under the feudal system, namely the assessing of 
aids for defraying some of their own private charges. Strictly speaking, how- 
ever, aids were not at first a direct feudal obligation, but were originally 
sums of money obtained from the tenants, out of a regard to the person and 
claims of the lord. In their most ancient state, too, both the amount and nature 
of aids were as uncertain as the occasions which arose to demand them and 
the property of the tenant could furnish ; but in the course of years they became 
established renders of duty, of which the three events mentioned in the text 
gave, in Normandy, the most general opportunities for claiming. These soon 
became fixed aud established, to the exclusion of certain other unreasonable 
demands made by the inferior lords of fees, which passed also under the title of 
aids ; as an assessment upon the tenants, to enable a lord to discharge his 
debts ; and one termed aide de relief, to furnish the sum required by the 
law of reliefs already treated of. In the reign of King Henry II. also, it was 
doubted whether the lords might not require aids toward the perfecting of 
their military preparations ; but all these illegal aids were abolished by the 
present chapter of King John's great charter. At the same time, three certain 
aids were permitted to be taken, as well by the king as by his barons : see 
chap, xv., to which also this note will be a sufficient commentary. They were 
ordained, however, to be taken in a lawful manner, and were, firstly, for redeem- 
ing the Icing's or a lord's body, that is to say, whenever he became a prisoner of 
war ; secondly, for making his eldest son a knight ; and thirdly, for once marry- 



NOTES ON THE GREAT CHARTER. 211 

ing his eldest daughter. For the first of these causes the aid was less frequent 
and more uncertain than any of the others ; but at the same time it was of the 
highest consequence that he should be ransomed at any rate, so often as he 
might be made a prisoner of war. Sir William Blackstone, in his Commen- 
taries, Book II., chap. 5, page 63, observes that as this species of aid was a 
natural consequence of feudal attachment and fidelity, the omission of it, 
whenever it was in the tenant's power, was, by the rigor of the feudal law, the 
absolute forfeiture of his estate. The second species of aid was for making the 
lord's eldest son a knight, " a matter," says the same authority, " that was former- 
ly attended with great ceremony, pomp, and expense." The intent of this was to 
bring up the heir of the lordship to arms and chivalry, for the better defence 
of the nation, and the assessment could not be made until the young chief had 
attained the age of fifteen, or at least was capable of bearing arms ; but ancient- 
ly, Sir Edward Coke observes, the lords would pretend that their eldest sons 
were hopeful and forward, as in their abilities and stature, and they would 
thence demand an aid larger than was due from their tenants, and also before 
the proper time. The same grievance was likewise imposed, with respect to 
the third kind of aid mentioned in the text, that of once marrying the lord's 
eldest daughter ; " by giving her," says Blackstone, " a suitable portion, for 
daughters' portions in those days were extremely slender, few lords being able 
to save much out of their income for this purpose ; nor could they acquire 
money by other means, being wholly conversant in matters of arms ; nor, by 
the law of their tenure, could they charge their lands with this or any other 
encumbrances." 

Ch. XIII. — The present chapter of Magna Charta specifies two kinds of 
franchises, namely, its ancient liberties and its free customs ; the first of which 
signify a royal privilege or branch of the king's prerogative, held by grant or 
prescription, and existing in the hands of his subjects, by which he or they enjoy 
privileges not common to ordinary persons. Free customs are liberties enjoyed 
by custom or usage, which, in its legal sense, signifies a law not written, but 
established by long use and the consent of ancestry. 

Ch. XIV. — The first members of the English council, down to the time of 
King Henry III., were those persons only who held of the king in chief, and who 
are ordained to be summoned by the present chapter of Magna Charta ; and 
they are designated in the more ancient histories and works on law by several 
names importing superior rank, as barons of the kingdom, the greater barons, 
&c, and the assembly which they formed is called the Great Council or King's 
Court, the word Parliament not coming into use until the latter part of the reign 
of King Henry III. Baron Maseres supposes in his paper that this council met 
at the least thrice in the year, at the feasts of Christmas, Easter and Whitsun- 
tide, which meetings being in the ordinary course, required no issue of summons, 
though there were occasionally others called for a special purpose, when the 
king issued his command for the council to come together. The occupations, 
however, were the same in each, as debates concerning war and peace, the grant- 



212 NOTES ON THE GREAT CHARTER. 

ing of aids to the king, the regulation of the laws, and the trial of great causes 
between the barons. The king however, at this period, had not the power of 
omitting to call a baron to the Great Council, nor of summoning any person who 
was not a tenant in chief. 

The tenants in chief, according to Domesday, amounted to about seven hun- 
dred persons ; but their baronies being very unequal in extent, and being in the 
course of years repeatedly divided and subdivided, especially by partitions with 
female heirs, they were diminished in quantity, while the number of tenants in 
chief was considerably increased. There are instances, says Baron Maseres, of 
persons holding the hundredth, and even the three hundredth part of a barony ; 
yet all these had a title to a seat in Parliament, and hence arose the distinction 
between the greater and lesser barons. A difference between these is noted in 
the present chapter of Magna Charta ; for the king was therein bound to sum- 
mon the former to Parliament individually by his letters, but the latter were to 
be summoned in general by his sheriffs or bailiffs. 

Ch. XVI. — This statute was intended to relieve such as had no remedy by 
the common law ; and it was a restoration of the ancient law of England. It is 
usually stated that the writ, entitled from its commencing words, " Ne injuste 
vexes," was originally grounded upon this act. Sir William Blackstone, how- 
ever, adopts the general belief following the "New Natura Brevium" of Fitz- 
herbert ; and explains that the writ is available where a tenant, who has held 
of a lord by certain services, has inadvertently given his lord possession of more 
and of greater. 

The Court of Common Pleas, which this chapter made permanent in its 
situation, is one of the king's courts now constantly held in Westminster Hall ; 
but in ancient time it was movable at the king's will, according to the place of 
the royal residence : whereupon, says Lord Coke, "many discontinuances ensued, 
and great trouble of jurors, charges of parties, and delay of justice; for these 
causes this statute was made." Sir William Blackstone states that, in the Saxon 
Constitution, there was only one superior court of justice in the kingdom, name- 
ly the General Council, of which some account has been already given, After 
the Norman invasion, the ecclesiastical jurisdiction was separated from the 
civil ; and King William soon after effected another separation, of the judicial 
and parliamentary power vested in the remaining members. On this account he 
established a constant court in his own residence, entitled "Aula Regis," or the 
King's Hall, which was composed of the great officers of state. Of these, the 
Lord Marshal generally presided in matters relating to honor and arms, and the 
military and national laws ; the Lord Chancellor kept the royal seal, and had 
cognizance of all letters, writs and grants, to which it was affixed ; the Lord 
Treasurer was the chief authority in affairs of the revenue ; and certain persons 
who had carefully studied the laws, called the king's justices, all of whom were 
assisted by the greater barons of the realm, formed a court to be consulted in 
cases of appeal or difficulty. Over this assembly presided an officer of great 
rank and power, who was denominated the Chief Justiciary of all England. Ho 



NOTES ON THE GREAT CHARTER. 213 

was esteemed the second person in the kingdom, of which, by virtue of his office, 
he was guardian in the king's absence ; and it was he who principally determined 
the vast variety of causes that were brought before this court. As such an 
establishment was bound to follow the king's household to whatsoever place it 
might remove, the trial of common causes became so difficult to the people, that 
its permanence formed one of the petitions of the barons in the preliminary ar- 
ticles of the great charter ; and it was in consequence settled in Westminster 
Hall, the place where the ancient kings of England were accustomed to reside, 
in which it has in general ever since continued. At the same time were ap- 
pointed justices of the common pleas, having a chief whose jurisdiction was to 
hear and determine all pleas of land and injuries between subject and subject. 

Trials for novel disseisin, for which this statute first provides, were inquisi- 
tions for the recovery of lands or tenements of which any party had been dis- 
seized or dispossessed ; and the term novel, or new, was applied, because the jus- 
tices who travelled went their circuits only from seven years to seven years ; and 
no assize was allowed before them which had commenced previously to the last 
circuit, as such was called an ancient assize ; while that which was concerning a 
later dispossession, was termed an " assize of novel disseisin." A trial of " mort 
(Tancestre " was an inquiry after the death of any ancestor or relative who was 
possessed of lands, &c, as estates which subsequently to their decease were abated 
— broken down or destroyed — by a stranger ; but the writ for this trial must be 
brought within fifty years, or the right may be lost by the neglect. The term 
ancestor is here considered to stop at the father in the ascending line, and the 
writ assumes a new name for the more ancient relations. It should be observed 
that both this writ and the former are now nearly obsolete, being almost super- 
seded by the action of ejectment, excepting in some very peculiar cases. A trial 
or assize of darrien presentment takes place when a person, or his ancestors under 
whom he claims, have presented a clerk to a benefice, and upon the next vacancy 
a stranger presents, disturbing him who is the real patron. In such a case, the 
true patron shall have a writ of last presentation directed to the sheriff, to sum- 
mon an assize or jury, to inquire who was the last patron that presented to the 
vacant church ; and according as the cause is decided, a writ is issued to the 
bishop to institute that clerk in favor of whose patron it is determined. Assizes 
of this nature were formerly conclusive, but they are now wholly disused, in 
consequence of a statute of the *7th of Anne, 1708, cap. xviii., by which a person 
has a right to recover if his title be good, notwithstanding the writ of last pres- 
entation. Previously to the making of this charter, all the above writs were 
required to be brought before the king or his justiciary, wherever they might 
happen to be ; but the present chapter tended considerably to relieve the jurors 
and parties in the plea, both in time and in expense, since by it justice was or- 
dained to be administered to them in their own counties, without their follow- 
ing the king's court, or that of the common pleas, to a distant place. 

Ch. XXL, XXII. — The term "amerciament" is derived of the French a merci, 
and signifies the pecuniary mulct laid upon an individual who has offended, and 



214 NOTES OlS" THE GREAT CHARTER. 

therefore lies at the mercy of the king. Amerciaments, properly so called, are 
penalties assessed by the peers or equals of the offending party ; and they are 
considered as more merciful than fines, because, if they are too heavy, a release 
may be sued by an ancient writ founded upon Magna Charta. 

The next species of amerciament mentioned in the text, is that to be assessed 
on a merchant, and this was to be done, saving his merchandise, upon the same 
principle as before ; "for trade and traffic," says Lord Coke, " are the livelihood 
of the merchant and the life of the commonwealth." 

Of villains in England under the feudal system, there were two kinds : the 
first were called villains in gross, and were such as belonged to the person of a 
lord and his heirs; and the second were those who belonged to a manor, and ap- 
pertained to the lord thereof only while he held it. These were termed villains 
regardant. But though the condition of a pure villain was such, that his lord 
was entitled to impose upon him those aids aud taillages already treated of, and 
even to dispossess him of all his property, yet the great charter has, with great 
humanity, a clause in its favor which states that he shall be amerced with safety to 
his toainage. This word is derived from the Saxon wagna, which signifies a cart 
or wagon ; and the most liberal meaning of the passage is, that tillage and 
husbandry shall not be hindered by levying a distress or amerciament. 

Ch. XXIII. — The original intent of this statute was to avoid the repetition 
of those fictitious exactions which, during the reigns of Richard I. and John, 
were made in the king's name for making of bridges, banks, fortresses, and bul- 
warks, contrary to law. 

Ch. XXIY. — Pleas of the crown, which it is the object of this chapter to 
preserve, are those suits which the king commences against all crimes and mis- 
demeanors ; " because," says Sir William Blackstone, " in him centres the 
majesty of the whole community, and he is supposed by the law to be the per- 
son injured by every infraction of the public rights belonging to that commu- 
nity, and is therefore in all cases the proper prosecutor for every public 
offence." The persons, then, by whom these pleas could not be held, comprise 
all classes of the royal officers, although four degrees only are mentioned in the 
text. Sheriffs were the chief officers under the king in every county, deriving 
their title from the two Saxon words shire and reve, the bailiff or steward of the 
division. They are called, however, in the Latin text of the great charter, 
vicecomes, which signifies, in place of the earl of the county, who anciently 
governed it under the king. The next officer mentioned in this chapter of Mag- 
na Charta, is called constabularius, or constable, which is sometimes derived 
from the Saxon ; but other authorities have conceived it, more truly, to come 
from the Latin comes stabuli, a superintendent of the imperial stables, or mas- 
ter of the horse. This title, however, began, in the course of time, to signify a 
commander, in which sense it was introduced into England. In the present 
instance, the word is put for the constable, or keeper of a castle, frequently 
called a castellan, of whose dignity mention will be made in a future note. 
They were possessed of such considerable power within their own precincts, 



NOTES ON THE GREAT CHARTER. 215 

that previously to the present act they held trials of crimes, properly the cogni- 
zance of the crown, as the sheriffs did within their respective bailiwicks, and 
sealed with their own effigies on horseback. 

As prisons were considered to be an important part of all ancient castles, 
these officers are sometimes called constables of fees, which signifies those who 
were paid for keeping of prisons. In this part of their duty they appear often 
to have been guilty of great cruelty. 

The title of coroner implies that he was an officer of the crown, to whom, in 
certain cases, pleas of the crown, in which the king is more immediately con- 
cerned, are properly belonging ; and in this sense the lord chief justice of the 
king's bench is the principal coroner of the kingdom. Previously to the statute 
of Magna Charta a coroner might not only receive accusations against offenders, 
but might try them. 

Ch. XXV. — From the time of the Norman invasion downward, the cities and 
towns of England were vested either in the crown, the clergy, or the barons ; that 
is to say, persons of one of these classes were the immediate lords of towns, &c. 
Those which appertained to the king were of several kinds ; for he possessed 
some by the original inheritance of his crown, which were termed ancient de- 
mesne ; and others became his by way of escheat, want of heirs, attainder, or 
forfeiture. 

From the reign of William I. also, the king was accustomed to let out the 
several counties of the realm at a farm or rent, concerted between the crown 
and the holder, or else they were committed to custody, the nature of which is 
shown in the note on Chapter IV. 

When a county was let out at a greater farm than it had been formerly 
rated at, the advance money was usually termed crementum, the increase, &c. 

The word county, in Latin comitatus, is derived from comes, the earl, a 
principal governor of it, to whom the sheriff was anciently a deputy ; the term 
hundred is supposed to have been introduced by King Alfred, and to signify a 
division of country containing ten towns, each of which consisted of ten families 
of freeholders ; a tretking, or trithing, amounted to a third part of a county ; 
and a wapentake, which is equivalent to a hundred, was so called because the 
governor of the district, when he first entered on his office, appeared in the field 
on horseback holding a lance, which all the chief men of the hundred touched 
with a similar weapon, thereby evincing their unanimity. (BlacJcstone, Jacob.) 

Ch. XXVI., XXVII. — The ancient common law respecting wills was, in 
general, peculiarly compulsory ; for in the time of Henry II. a person's goods 
were to be divided into three parts, of which one went to his wife, another to his 
heirs, and a third he was at liberty to dispose of. If he were childless, his 
widow claimed half; and if he were a widower with children, they also claimed an 
equal portion ; and these were termed their reasonable shares, as the expression 
is used in the text of Magna Charta. 

It was also an ancient custom for the clergy to claim a gift on the decease of 
any of their parishioners, called a mortuary, which was intended as a species of 



216 NOTES ON THE GEE AT CHAETEE. 

amends to the ecclesiastics for personal tythes, or other duties, which the de- 
ceased had forgotten or omitted to pay. The mortuary consisted of the second 
best chattel remaining, after the lord had taken out his heriot. 

Such were the chief points required in the ancient English testaments ; and 
if a person died without making any disposition of that part of his property 
which he might bequeath, the king, as the general trustee of the kingdom, and 
father of the country, was empowered to seize upon it. In process of time this 
branch of the prerogative was given to the church, which was done because 
spiritual men were supposed to have a better knowledge of what would conduce 
to the benefit of the soul of the deceased. 

As these ecclesiastics, however, were not accountable to any one for the faith- 
ful discharge of their trust, they too frequently abused it ; and it appears that, 
so late as about 1250, the clergy took the whole residue of the deceased's 
estate after the widow's and children's two thirds had been deducted, without 
even paying his lawful debts ; for which reason, in 1284, it was enacted that the 
ordinary should be bound to pay the debts of the intestate so far as the goods 
would extend. 

The intention of the inventory mentioned in this chapter, was not less to pre- 
vent the executor from concealing any part of the property of the deceased, than 
to secure the payment of the king's debts. 

The following chapter (XXVII.) relates to such persons only as die intestate: 
who, according to Matthew Paris, were anciently considered as eternally con- 
demned, because by the canon they were obliged to leave a tenth of their prop- 
erty to pious uses for the redemption of their souls ; which he who did not, re- 
garded not his own salvation. There was also no distinction made between one 
who died without a will, and a suicide ; for the goods of the former were for- 
feited to the chief-lord, and of the latter to the king. As, however, sudden 
deaths might frequently cause intestates, the bishops, in the course of time, re- 
ceived power to make such a distribution from the goods of the deceased as he 
himself was bound to do, under the term of Eleemosyna rationabilia. 

Chs. XXVIII., XXIX., XXX., X XX I.— The four chapters which are next 
to be considered have one principal aim, the regulation of purveyance, and 
the duties to be taken for the maintenance of castles. They were intended to 
remedy the heavy oppressions inflicted by the governors of castles upon the sur- 
rounding tenants, and even on the military, as well in peace as in war. Some 
notice of the evil practice of these castellans has already been given ; but pre- 
viously to entering upon a particular illustration of the text in this place, it will be 
proper to give some notice of the nature of purveyance in general. The term 
itself is derived of the French pourvoir — to provide — and its legal acceptation 
was a providing for the king's household by his officers, who exercised his pre- 
rogative of buying provisions, &c, at a certain rate, to the preference of all 
others, and even without the owner's consent. It embraced also the power of 
impressing the horses and carriages of the subject to execute the king's busi- 



NOTES ON THE GREAT CHARTER. 217 

ness on the public roads, in the conveyance of timber, baggage, &c, however 
inconvenient to the proprietor, upon paying him a settled price. 

Lord Coke, in commenting on the first of these chapters, says, that the con- 
stable of a castle had no right to make purveyance at all ; though the fortress 
were to be kept for the defence of the realm, as it might be taken for the houses 
of the king and queen only. "Constables," says the author of the Mirror, 
" should defend the rights of all persons around them ; for there is no difference 
between taking ill care of them, and robbery — the which is this seizing of their 
horses, provisions, merchandise, carriages, lodging, or any kind of their goods." 

Castle-guard was an essential part of knight's service, but it did not extend 
to the fortress of any other than the peculiar lord, nor even to that if it were 
alienated ; and the part to be watched, as a door, tower, bridge, or sconce, was to 
be specified in the tenure. The duty of watching, however, might be discharged 
either by the tenant or his deputy ; but though there was not any certain term 
ordained by law for the performance or duration of it, the tenant was to receive, 
says Littleton, Lib. II., ch. iv., sect. 3, a reasonable notice, when his lord hears 
that the enemies will come, or come into England ; and Lord Coke adds, that he 
was not bound to attend until such notice was given. If any damage happened 
to the fortress from careless keeping, the lord was entitled to distrain for it, and 
recover satisfaction from his tenant. 

The wood is protected on the ground, that being part of the subject's inherit- 
ance, it could therefore no more be taken than the inheritance itself. 

Ch. XXXII. — The prerogative mentioned in this division of Magna Charta, 
that the sovereign should hold the lands of a felon for a year and a day, exists 
also in the French and Danish laws. The ancient custom was that in detesta- 
tion of the crime committed, the felon's property, if it were held of a subject, 
was to be destroyed — as the houses to be thrown down, the gardens extirpated, 
the woods eradicated, and the meadow-land ploughed up — this was termed 
waste, and of right belonged to the king as part of the felon's forfeiture ; but for 
the common benefit the lords of estates were afterward contented to resign such 
lands to be retained by the king for a year and a day, in consequence of which, 
waste was omitted in this chapter of Magna Charta, and no waste was to be 
made after they returned to the lord of the fee. The word felony in this chapter 
signifies that kind which is punished by death, though nearly all felonies carry 
with them forfeiture of estates, and thus Sir William Blackstone supposed the 
word to have been derived of the Teutonic terms fel, an estate, and Ion, the 
price or value — that is to say, the consideration for which the land has been 



Ch. XXXIII. — The intent of this brief fragment of the old common law was 
to prevent any persons from appropriating to themselves a fishery of any part 
of the river Thames which was common property. 

"Wears are large dams made across rivers for the taking of fish, or the con- 
veyance of water to a mill ; and the peculiar kind mentioned in the text, called 
Kydells, were dams having a loop or narrow cut in them, and furnished with 
10 



218 NOTES ON THE GREAT CHARTER. 

wheels and engines for catching of fish. They are now called kettles, or kettle 
nets, and are still in use on the sea coasts of Kent and Cornwall. 

Ch. XXXIV. — The writ mentioned in the text is of that class properly 
termed writs of right, its ancient name of Praecipe in Capite, being derived from 
the first words of the instrument. 

The chief intent of the present chapter appears to be to prevent any false 
transfer of property under color of this writ, from one lord to another, by which 
the former lost both his fee and his tenant's services. The writ of right should 
be first brought into the court baron of the lord of whom the lands are held, but 
if he do not hold any, or have waived his right, then it might be brought into 
the king's. As in this instance also it was sometimes falsely pretended that a 
lord had waived his right, the present chapter of Magna Charta restrains any 
improper use of the writ Praecipe, by which a lord might be dispossessed of his 
right of court of jurisdiction over his tenants. 

Ch. XXXV. — Two peculiar kinds of cloth are mentioned in this division of 
Magna Charta: halberjects, or haubergets, and russets. The first was a kind of 
very coarse and thick mixed English cloth, of various colors, sometimes used 
for the habits of monks ; and its name was probably derived from the German 
words a?, all, or haltz, or hah, the neck, and bergen, to cover. Russets were 
also a monastic dress, made of an inferior cloth, sometimes spun by rustics, and 
dyed by them of a dull reddish hue, with bark. John de Neville, in the year 
1386, ordered by his will that his coffin should be attended by twenty-three 
paupers in russet cloaks, bearing torches, and carried by as many more in cloth 
of russet wool, bearing a red cross. The name of this material is doubtless de- 
rived of the Latin russus, a kind of red. 

Ch. XXXVI. — The intent of this short but important chapter, was to prevent 
the long imprisonment of a person charged with a crime, without examining his 
guilt or innocence. "For the intent of imprisoning such," says Lord Coke, " is 
only for their security, that they may be duly tried." There is a striking simi- 
larity between this division of the great charter, and the act of habeas corpus, of 
which it may, in some measure, be considered as the ancient prototype ; for the 
purpose of each was to bring an accused person to trial without an extended 
confinement. The writ of inquisition or inquiry mentioned in the text, was de- 
nominated Odio et Acid of hatred and malice, and was anciently called Breve de 
bone et Malo — the writ concerning good and evil, from those words appearing 
in it ; and it was assigned by the common law to any imprisoned person, to pre- 
vent his remaining in prison until the arrival of the justices in Eyre, when he 
should be tried. " The former was available," says Lord Coke, "for the most odious 
cause, even for the death of a man, which, without the king's writ, could not be 
bailed ; but in that instance a writ of inquisition was issued to the sheriff of the 
county, that he should assume the holding of a court of pleas of the crown, and, 
in full county, by the oath of true and lawful men, inquire whether the accused 
person were guilty of hatred and malice ; unless he had been previously indicted 
or called before the justices in Eyre, because then his accusation became matter 



NOTES ON THE GREAT CHARTER. 219 

of record, against which this writ could not stand, being grounded on a surmise. 
The latter writ mentioned above, was issued when any person was committed to 
prison for the death of a man, and was addressed to the justices of jail delivery. 
It set forth that " if N, taken and detained in prison for the death of M, be willing 
to place himself upon his country for good and evil, and for this occasion, and 
for no other, is detained in the same, and not by any special mandate of ours, 
then let N be delivered from the prison aforesaid, according to the laws and 
customs of England." Without this writ the justices of jail-delivery would not, 
anciently, proceed to trial. This statute was altered and amended by three 
others, passed in the reign of Edward I. ; and in 1354, the 28th of Edward III., 
chapter ix., the writ de Odio et Acid was taken away, because the sheriffs of 
counties made inquests for the indicting of the people, and then took fines and 
ransoms for their delivery, without ever bringing them before the king's justices. 
Lord Coke, however, observes that it was enacted in 1237 that all statutes con- 
trary to Magna Charta should be void, on which account the writs still remained. 
" And therefore," adds he, " the king's justices in general have not suffered the 
prisoner to remain long in prison, but have speedily brought him to trial at 
their next coming." This practice is also commanded and described in the 
statute of Gloucester, 6th Edward I. 

Ch. XXXVII. — There are five different species of tenures mentioned in 
this division of the great charter, one of which— military tenure — has al- 
ready been sufficiently described. Concerning the remaining four, it will be 
proper to give some explanation, previously to considering the intent of the 
statute itself. 

Fee farm, is when the lord of an estate, on creation of a tenancy, reserves to 
himself either the rent for which it was before let, or was reasonably worth, or 
at least a fourth part of the value, without any extraordinary services. 

The term socage is derived by some from the old French word soc, a plough- 
share, and signifies a portion of lands held by tenure of certain inferior offices 
in husbandry, or any conventional services that were not military. It was an- 
ciently the most popular English tenure, and was of so wide an extent, that 
Littleton states that all the tenures which were not held by knights' service, 
were held by socage. 

Tenure by burgage bears a very close resemblance to socage, and it is de- 
fined to be where the king or any other person is lord of an ancient borough, in 
which tenements are held by a rent certain ; whence it has been called a species 
of town socage, as common socage is generally rural. 

Petit or petty serjeantry consisted, according to Littleton, in holding lands 
of the king by the service of giving him some small weapon of war, as a bow, a 
sword, a lance, an arrow, &c, as it is stated in the text of Magna Charta ; and 
hence, as it was the payment of a certain rent, it has also been considered as a 
species of socage. 

The intent of the present chapter of the great charter, was to prevent the 
king from claiming, by virtue of the tenure of petty serjeantry, which could be 



220 NOTES ON THE GEEAT CHAETEE. 

held of him only, the profit attached to the wardship of the heir, and his lands. 
The famous statute of the 12th of Charles II., rendered this portion of the great 
charter obsolete, by taking away wardship and most of the feudal tenures ; al- 
though the honorary services belonging to grand serjeantry were not wholly 
abolished by it. — Coke — Blackstone — Statutes at Large. 

Ch. XXXVIII. — The expression used in the 38th chapter, to be put to his 
law, is equivalent to putting a person upon his oath, which is the medium fur- 
nished him by the law, of proving himself innocent of any charge. The trials 
which were anciently used by the Saxons were by wager of law, by ordeal, and 
by jury ; of which the first and third properly belong to the present chapters, 
the trial by ordeal being referable to the 54th division of the great charter. 

The wager of law received its name from the similarity it bore to that proof 
which is called the wager of battle ; for as in the latter instance the defendant 
gave a pledge or gage to try the cause by combat, so in the former he put in 
sureties, or vadios, that at a certain day he would take the benefit which the 
law had provided him. 

The expression wager is derived either from the old French gager, to pledge, 
or from the German waegen, to attempt anything dangerous. Before, however, 
the wager of law could be demanded of the defendant, the accuser was obliged, 
beyond his own declaration, to produce his secta, suit, followers, or witnesses, 
whose testimony was to be consistent, and by whom a probable case was to be 
made out. 

When the charge was complete, and the defendant had given security to 
make his law, he came into court with eleven of his neighbors, and, standing at 
the end of the bar, was asked by the secondary whether he would wage his law, 
and admonished by the judges of the danger of a false oath. If he persisted, an 
oath similar to the following form was administered to him : " Hear this, ye 
justices ! That I do not owe to the sum of , nor any penny there- 
of, in manner and form as the said hath declared against me, so help 

me God ! " The defendant's eleven neighbors or compurgators then avowed, 
upon their oaths, that they believed in their consciences that he had spoken the 
truth ; thus, whilst he was sworn to faithfulness, they were sworn to declare as 
faithful a belief. Previously to these oaths being administered, the plaintiff was 
thrice called into court ; if he did not appear, he was nonsuited, though he might 
bring a new action ; but if he appeared, and the defendant, &c, made the oaths, 
his claim was barred forever, the wager of law being equal to a verdict against 
him. This species of trial was never permitted but in cases where the defend- 
ant bore a fair and irreproachable character ; and it is supposed to have had its 
original in the Mosaical law mentioned in Exodus xxii. v. 10, 11. It is also to 
be traced in the legal codes of most of the northern nations ; and its intent was, 
that an innocent man of good credit might find a remedy when he was over- 
borne by a multitude of false witnesses. 

Ch. XXXIX. — Sir Edward Coke, in commenting upon this chapter, shows 
that the evils from which the law of the land are to protect any person, are 



NOTES ON THE GREAT CHARTER. 221 

recited in the order in which they most affect him ; as, firstly, loss of liberty — 
u no free man shall be taken or imprisoned ; " because the freedom of a man's 
person is more precious to him than all the succeeding particulars ; and the 
word " taken," which occurs in this clause, signifies being restrained of liberty 
by petition or suggestion to the king or his council. 

Secondly, the chapter declares, that none " shall be disseized of his free 
tenement, his liberties, or his free customs," meaning that neither the king nor 
others shall seize upon any of his possessions, and that a man shall not be put 
from his livelihood without answer. Against this law, it seems, even a royal 
patent could not stand. The word liberties has several significations ; as the 
laws of the realm, privileges bestowed by the king, and the natural freedom 
possessed by the subjects of England, for which cause monopolies in general are 
against the enactments of the great charter. 

The present chapter ordains, thirdly, that none shall be outlawed, exiled, or 
in any way destroyed. By outlawry is signified the ejecting of a person by three 
public proclamations from the benefit of the law, which, from the time of Alfred 
until long after the reign of William I., could be done for felony only, for which 
the penalty was death ; and therefore an outlaw, being considered as a wolf, 
might be slain by any man. 

The expression being exiled is equivalent with transportation, and it signifies 
to be banished or forced to abjure the realm against one's consent. 

The chapter next declares that none shall be, " in any manner, destroyed 
contrary to the law of the land ; " which Sir Edward Coke interprets to signify 
being " forejudged of life or limb, disinherited, or put to torture or death." He 
also observes that the words " in any manner " are added to the expression 
u destroyed," and to no other in the sentence, because they prohibit any means 
being used by which this destruction may be brought about ; thus, if any indi- 
vidual be accused or indicted of felony, his goods or lands can neither be seized 
into the king's hands, nor granted, nor even promised to another, before his 
attainder. 

In the original Latin of this charter, the above engagement is followed by 
the words " nee super eum ibimus, nee super eum mittemus y" of which the 
literal translation is, " nor will we pass upon him, nor commit him," &c. ; but, 
as the margin of the statutes at large observes, these words do by no means ex- 
press the sense of the original ; and Sir Edward Coke states that they signify 
that none shall be condemned at the king's suit, either before the king in his 
bench, where the pleas are supposed to be held in his presence, or before any 
judge or commission whatever. 

The word peer was probably originally derived of the Latin par, an equal, 
but was afterward used to signify the vassals or tenants of the same lord, who 
were equals in rank, and were obliged to attend him in his courts. They were 
also called peers of fees, either because they held their fees or estates under 
him, or because they sat in his courts to judge with him of disputes arising upon 
fees ; and if there were too many in one lordship, the lord selected twelve of 



222 NOTES ON THE GEE AT CHARTER. 

his tenants, who received the title of peers by way of distinction, whence it is 
said that juries have been derived. 

To be judged according to " the law of the land," is the last privilege se- 
cured by the present chapter ; which expression Sir Edward Coke interprets to 
signify the law of England, in its most extensive sense, binding both the sov- 
ereign and the subject ; for which cause it is not written in the name of either. 
It likewise signifies that none of the foregoing penalties were to be imposed, 
but after due process of the common law. 

Ch. XL. — The intent of this chapter, which in the third great charter of 
King Henry III., vide page 140, was added to the preceding, was to abolish those 
fines which were anciently paid to delay or expedite law proceedings and to pro- 
cure favor. Madox, who in his history of the exchequer, chap, xii., gives num- 
erous instances of these fines, states that the counties of Norfolk used to pay 
an annual composition at the exchequer, that it might " be fairly dealt with." 

By the expression, " to none will we sell" were abolished those excessively 
high fines paid for procuring of right or judgment. The words, " to none will 
we deny" referred to the stopping of suits or proceedings, and the denial of 
writs ; and the engagement, " to none will we delay right or justice," provided 
against those delays which were caused by the counter-fines of defendants, who 
would sometimes outbid the plaintiff, or by the will of the prince. 

The concluding words of this chapter are all which require to be noticed, 
namely, " right and justice." The former, according to Lord Coke, signifies the 
law, because it guides as a right line, discovers that which is wrong, is the 
best birthright of the subject, and is supposed to allude to the Writ of Right, 
which must be given without fine. The passage then ordains that neither right, 
nor law, which forms the means of procuring justice, nor justice itself, which is the 
end of the law, shall be bought, sold, or denied. Such are the contents of these 
important chapters, which admit of the most extensive commentary and analysis ; 
for it is aptly though quaintly observed by Lord Coke, in concluding his minute 
illustrations of these passages : " As the gold-finer will not, out of the dust of 
shreds of gold, let pass the least crum, in respect of the excellency of the metall, 
so ought not the learned reader to passe any syllable of the law, in respect of the 
excellency of the matter." 

Chs. XLL, XLII. The protection from " evil tolls " is a security from paying 
so large a custom or imposition upon any goods, that the fair profit is lost there- 
in, and the trade thereby prevented. 

Lord Coke, in his Commentary on Pleas of the Crown contained in his Third 
Institute, chapter 84, shows that there were certain orders of men under a con- 
tinual prohibition of quitting the realm without the king's previous license ; 
though by the common law, every one had liberty to go where he would, pro- 
vided he was under no injunction to remain at home. Some of the persons who 
were not to depart without the king's license were peers, because they were the 
councillors of the crown ; knights, because they were to defend the kingdom 
from invasion ; all ecclesiastics, because they were confined by a special law, on 



NOTES ON THE GREAT CHARTER. 223 

account of their attachment to the See of Rome ; and all archers and artifi- 
cers, lest they should instruct foreigners how to rival the manufactures of Eng- 
land. 

By the writ called " ne exeat regno" the sovereign has still the power of con- 
fining his subjects within the kingdom, under severe penalties, because every man 
ought of right to defend the king and his realm ; and to this reason Magna 
Charta has a reference, when it states that in time of war persons may be re- 
strained from going abroad " for some short space for the good of the king- 
dom." 

Ch. XLIII. The signification of the title Honor, is a more noble sort of 
lordship, on which other inferior estates depend, by the performance of certain 
services to the superior chief, who is called the Lord Paramount ; and his seign- 
iory is frequently termed an honor, not a manor, especially if it ever have be- 
longed to the king or to an ancient feudal baron. To constitute an honor, 
however, it was essential that it should have been originally created by the king, 
and that it should be holden of the king ; for, though the king might grant it to 
a subject, yet if it were assigned to another, it could not be holden of a sub- 
ject. 

The word escheat, which also occurs in this chapter, is derived of the old 
French word, escheoir, to return or happen : and it signifies the return of an estate 
to a lord, either on failure of issue from the tenant, or upon account of such 
tenant's felony. The nature of reliefs paid to the chief lord at the entry of a 
new heir, has already been particularly described ; and it was usual for honors 
to be let out to the sheriffs to farm, in the manner already stated. 

Chs. XLIY., XLVIL, XL VIII., Lin.— " When a conqueror," says Mr. Lewis, 
" settled the economy of a country which he had previously vanquished, it behoved 
him, in order to secure his new acquisition, to keep the natives of the country 
(who were not his military tenants) in as humble a condition as possible ; and 
move especially to restrain them from the use of arms ; and as nothing could do 
this so effectually as the prohibition of hunting and shooting, it became a matter 
of policy to reserve this right to himself, or to those of his capital feudatories (the 
greater barons), on whom he thought proper to bestow it." On this account 
these laws were both instituted and executed with much cruelty; but in Canute's 
charter, granted at Winchester, in the year 1016, many of the offences commit- 
ted, both on the vert and venison, were to be redeemed by fines ; and this 
restriction extended only to the royal forests. The succeeding century pro- 
duced a terrible alteration in these statutes ; beasts of venery were then consid- 
ered to belong solely to the king, and the right of taking them to be vested 
only in him ; and while the Xorman government carried these regulations to 
their greatest extent, a wide range of country was appropriated for the chase by 
the command of William the First, which was then denominated the New For- 
est. Within these limits, and under the color of forest law, the most horrid 
tyrannies and oppressions were exercised ; the penalties attached to the destroy- 
ing a beast within the bounds of a forest, were made almost as severe as taking 



224 NOTES ON THE GREAT CHARTER. 

away the life of a human being. These principles, if we credit the assertion of 
Matthew Paris, seem to have influenced the mind of John more than that of any 
other monarch, for his interdict touching the chase, extended to the winged as 
well as to the four-footed creation. It is not surprising that from such laws as 
these the people of England should contend as earnestly for liberation, as from 
the other oppressions of the feudal system ; and John would have been as reluc- 
tant to confirm the charter of forests, as he was to ratify the charter of liberties ; 
but the former instrument was granted in the ninth year of his successor, King 
Henry the Third. 

Ch. XLV. — Dr. Brady supposes that the office of chief justiciary was origin- 
ally derived from Normandy, where he believes him to have been the same as 
the grand seneschal ■ in England he had extensive power over all the inferior 
officers of the law, took cognizance of all crimes, and was often general, vice- 
roy, and guardian of the kingdom. The annals of Waverley (which are contem- 
porary with Magna Charta), besides the oppression and incontinence of the king 
himself, ascribe the anger of the barons to the ill use which Peter, Bishop of 
Winchester, who in 1213 was constituted chief justiciary, made of his newly 
acquired power, during the absence of King John in France. And this appears 
the more probable, because the nobility were from the first extremely disgusted 
at his promotion, taking it very ill that a foreigner should be preferred above 
them all ; and because in the great charter we find the power of the chief jus- 
ticiary considerably curbed in many instances, and a strong innuendo given, that 
the officers of justice had been deficient in the knowledge, or at least in the ob- 
servance, of the laws of the land. — Thompson's Magna Charta. 

Ch. XLIX. — These hostages were first taken about the year 1208, during the 
time of the interdict, when King John, fearing that the Pope might absolve all 
his subjects from their allegiance, demanded pledges of all the barons, &c, whom 
he suspected, to be delivered to him as securities for their future fidelity. 
" Many of them," says Dr. Brady, " gave their sons, their nephews, or their 
nearest relations to the messengers whom he sent for them. In July, 1211, when 
he marched into Wales and subdued it, he received twenty-eight hostages from 
the nobles of that nation, who were executed on account of a revolt in the year 
following. 

Ch. LI. — The 51st chapter of John's charter provides for the dismission of 
certain alien soldiers, distinguished by the names of foreign knights, crossbow- 
men, and stipendiaries, who had been probably hired by the king to assist him 
against his barons. Even under the feudal system, paid or stipendiary troops, 
both national and foreign, were engaged by the monarchs, with the sums given 
by such as commuted for their services ; and their duties were castle guards, 
foreign garrisons, or the protecting of the marches, or borders of the kingdom, 
adjoining Wales and Scotland. Their pay was sometimes out of the privy 
purse, or else they were suffered to live at free quarters ; and being actually a 
party of wandering brigands from all nations, ready to embrace any side for 



NOTES ON THE GREAT CHARTER. 225 

hire, tbey gave rise to that cause of complaint alleged against them in the text, 
that they came with horses and arms to the molestation of the kingdom. 

As the crossbow, or hand arbalisl, is said to have been introduced into 
France by the first crusaders, and to have been used early in the reign of Louis 
le Gros, which began in 1108, it may probably account for the balistarii, or 
crossbowmen, being foreigners. 

Ch. LII. — This chapter provides for the restoration of any possessions which 
had been unjustly seized on during his dispute with the barons ; though at the 
same time it has a retrospective effect, by referring to such as were seized in 
the reigns of Henry II. and Richard I., then remaining in the king's hands. 
This demand, however, appears to have been already, in some degree, complied 
with ; for, about February or March, 1214, John assumed the cross as a protec- 
tion, and the present clause refers to some estates concerning which pleas had 
before been moved, and inquisitions previously taken. The text observes that 
all others were to be respited for the usual term of the crusaders, by which 
was signified the space of three years, allowed to all who took the cross, during 
which time their debts bore no interest, even from the day on which they joined 
the crusade ; nor could a crossed debtor be cited before any court, until his 
return from beyond the seas. On account of these privileges, and from their 
suspicions that King John had assumed the cross only to secure himself and his 
possessions, the barons probably inserted that peculiar clause in the text, pro- 
viding that if he did not go upon the crusade, he would immediately grant them 
their petitions. 

Ch. LIY. — The particular species of action indicated in this chapter, is 
called an appeal to death, which is of two kinds, murder properly so named, 
and manslaughter ; these being the only crimes for which an appeal can be 
brought for a relation, all others referring to the parties themselves. The 
appeal of death, however, cannot be brought for every relation, but only by a 
widow for the death of her husband, and by the heir male for that of his mother 
or ancestor, which heirship was extended, by an ordinance of King Henry I., to 
the four nearest degrees of blood. The writ of appeal is a natural consequence 
annexed to the widowhood of a woman, and is allowed her on account of the 
loss of her husband ; if, therefore, she marry before or during her appeal, it is 
entirely lost ; and if after judgment, she cannot demand execution. 

The principal value of appeals of murder can hardly be estimated at the 
present day ; though anciently there were reasons for thus prosecuting offences 
rather than by indictment. Blackstone and Barrington suppose that they had 
their origin in those times when a pecuniary satisfaction was paid for the expia- 
tion of great crimes ; and princes were accustomed to pardon even murder, 
considering it as homicide, for a certain sum, entitled a weregild, to be paid to 
the nearest relation. 

An acquittal, in the case of an appeal, protected the party from being after- 
ward indicted for the same offence ; and it was provided by the statute of West- 
minster, ch. xii., that in such a case the appellor or prosecutor should suffer a 
10* 



226 NOTES ON THE GEE AT CHARTER. 

year's imprisonment, pay a fine to the king, and make restitution to the defend- 
ant for his imprisonment and infamy; which provision was of considerable effect 
in discouraging the common use of appeals. If, on the contrary, the appellee 
were found guilty, he suffered the same judgment as if he had been convicted 
by indictment ; the king having no power to pardon him, any more than he had 
to permit the payment of the weregild. 

Chs. LVL, LVII. — The text of King John's great charter declares, that all 
these disputes shall be decided by a threefold law, peculiar to that place to 
which they might refer : as the law of England for English tenements ; that of 
Wales for Welsh possessions ; and that of the Marches, for those estates situate 
on the borders of the two countries. The term marches is derived either from 
the German word march, a mark, limit, or boundary, or from the old French 
marque, signum ; and it signifies the line of distinction between two territories, 
considered as enemies' countries, which was anciently the case betwixt England, 
Wales, and Scotland. The Welsh marches are situate on the western and 
northern sides of Shropshire. They were governed by certain of the nobility 
called lords marchers, or marquesses of the marches of Wales, who possessed a 
kind of palatine authority in their respective territories, administered justice to 
the inhabitants in their own courts, and were gifted with several privileges and 
immunities, particularly under certain circumstances, with an exemption from 
the royal writ. 

The law of Wales, which is also mentioned in this part of the great charter, 
refers to that code which was left to the ancient inhabitants, with such parts of 
the country as were not taken from them. It consisted of the statutes drawn 
up by Howel Dha, king of South Wales, in 940, and his council at "the White 
House on the River Taf," which were formed of the ancient laws and customs 
of the country, then fallen into decay, amended and increased. 

Ch. LVIII. — The 58th and 59th chapters of this charter relate to two events in 
the life of King John, and his connection with the princes of Wales and Scotland. 
In 1211, the lords of* the Welsh marches made several heavy complaints to John 
against Llewellyn, the great prince of North Wales, concerning his ravages and 
incursions into England, and the king, assembling an army, marched through the 
whole country, whence, however, he soon returned, with considerable loss. In 
1212 he entered Wales, and, as many of the Welsh nobility were of his party, 
Prince Llewellyn, who had married Joan, the king's natural daughter, sent her 
to him to make terms of peace, which were afterward confirmed between the 
prince and the king. Hostages were then given, and Llewellyn promised the 
king toward his charges, 20,000 head of cattle and 40 horses. The patent roll of 
the 16th of John, 1215, membrane 9, records a waiTant for the delivery of certain 
Welsh hostages, probably some of those mentioned in the text. 

Ch. LIX. — John's agreement with Alexander II., king of Scots, which occu- 
pies the 59th chapter, refers to the capture of his father William I., in 1173, at 
Alnwick in Northumberland, when he covenanted to restore all that he had taken 
from England, to do homage for his crown, and give as security the castles of 



NOTES ON THE GREAT CHARTER. 227 

Roxburgh, Berwick, Sterling, and Edinburgh. On November 22d, 1200, the same 
king did homage to John at Lincoln, and then demanded of him the restoration of 
the counties of Northumberland, Cumberland, and Westmoreland, with all their 
appurtenances, as his ancient right and inheritance ; but as they came to no agree- 
ment, William returned discontented into Scotland. But though this claim re- 
mained unanswered until the king's death in December, 1214, he had entered into 
such a friendly compact with John, as to send his son Alexander over to England^ 
where he was knighted in 1212. In the civil wars of the barons, they invited 
Alexander to join them, after the conclusion of Magna Charta ; and in 1216, he 
entered England, where Norham Castle was surrendered to him upon terms. As 
he marched farther into the country, he took homage of Northumberland, and the 
barons of Yorkshire fled to him for protection from John's advancing army, be- 
fore which, however, he was at length forced to retreat into his own kingdom. 
He afterward married Joanna, King John's eldest daughter by his third queen, 
Isabella of AngoulSme, at York, on June 25th, 1221. 

Ch. LX. — The insertion of this clause of the great charter, by which all the 
engagements and limitations between the king and his barons, &c, are made 
binding on them toward their own dependents, has been sometimes attributed 
to John himself. " For," says Dr. Henry, in his History of Great Britain, after 
mentioning this probability, "though the great barons were very desirous to pre- 
vent the tyrannical exercise of the feudal authority toward themselves, many 
of them were much inclined to exercise it in that manner toward their vassals, 
and continued to do so after this charter was granted." " This," he continues, 
" both encouraged our kings to violate all its limitations, and furnished them 
■with a ready answer to all the complaints of their barons." Lord Coke, how- 
ever, views this clause in a very different aspect, since he says of it : " This is 
the chief felicity of a kingdom, when good laws are reciprocally, of prince and 
people, as is here undertaken — duly observed." Dr. Lingard, in his History 
of England, Yol. II., ch. xiv., page 257, seems to believe that as the great body 
of freemen was composed of the subvassals of the immediate tenants of the 
crown, the clause was inserted for them, because they had assisted in procuring 
the charter itself. By Samuel Henshall, it is asserted that John himself caused 
this passage to be included in the articles of the great charter ; and it is to be 
observed to be the only clause which affects the whole body of the people. 

Ch. LXII. — ^After the extended and violent hostilities, between the king and 
his peers, the great charter properly contains one section, as an act of oblivion 
and reconciliation ; which it may be observed, has so much of a retrospective 
view, as to commence at the preceding Easter, April 29th, 1215. The peace 
was actually concluded on Friday, June 19th, and it was announced to the king's 
party by the following letter, which is entered on the patent rolls, and which in 
referring to the fines and tenseriae, — a military tax or contribution — may be 
thought to have some allusion to the taking away of unlawful amerciaments, 
provided by chapter lv. of King John's charter. 

" The king to Stephen Harengod, &c. Know ye, that a firm peace was, by 



228 NOTES ON THE GREAT CHARTER. 

the grace of God, made between us and our barons, on the Friday next after the 
feast of the Holy Trinity, at Eunneniede near to Staines, and that there we took 
homage of the same. Wherefore, we steadfastly command and instruct you, as 
ye have respect unto us, and our honour, and the peace of our kingdom, that 
you shall no further disturb, nor do any evil to our barons, nor to others, for 
the future ; nor permit any occasion to be taken from the former discord be- 
tween us and them. We also command you, that of the fines and tenserige 
taken by us on account of that discord, if any remain to be paid after the afore- 
said Friday, nothing shall be taken. And the bodies of the prisoners, and 
hostages, and such as are detained on account of those wars, or fines, or tense- 
riae, aforesaid, shall be liberated without delay. All the aforesaid shall be done 
as ye have respect to our person. And in testimony of this matter we send 
to you : Witness myself, at Runnemede, the 18th day of June, in the Seven- 
teenth year of our reign." 



CHAPTEE V. 

THE RISE OF PARLIAMENTARY REPRESENTATION. 

SUFFICIENCY OF MAGNA CHARTA — NECESSITY OF FURTHER GUARANTEES POWER 

OF PARLIAMENT IN THE REIGN OF JOHN — ABSENCE OF THE REPRESENTATIVE 
PRINCIPLE — HENRY'S RATIFICATION OF THE CHARTER OF KING JOHN — BLEND- 
ING OF THE NORMAN AND SAXON RACES HENRY'S MORTGAGE OF THE KINGDOM 

TO THE POPE — THE GOVERNMENT INTRUSTED TO TWENTY-FOUR BARONS — THE 

CIVIL WAR — DE MONTFORT'S PARLIAMENT OVERTHROW OF DE MONTFORT 

FIRST CONSTITUTIONAL HOUSE OF COMMONS ACCESSION OF EDWARD I. HIS 

CONFIRMATION OF THE CHARTERS STATUTE DE TALLAGIO NON CONCEDENDO 

FINAL SETTLEMENT OF PARLIAMENTARY REPRESENTATION. 

The Charter of King John, had its provisions been faithfully 
executed, would unquestionably have been found sufficient to en- 
sure the safety of the subject and the quiet of the kingdom. As 
yet the refinements of a high civilization were unknown, and a 
complicated system of government could only have resulted in 
confusion. To secure mankind in the possession of life, liberty, 
and property, are the sole objects of all government ; and that 
form is the best for every people, which in its peculiar circum- 
stances is the best adapted to attain this end. Ideal systems for 
the government of mankind are the dream of the philosopher, but 
the Republic of Plato and the Arcadia of Sydney only serve to 
show what man's condition might be if man were not what man is. 
Magna Charta was sufficient for its time, so far as any mere agree- 
ment could suffice ; but it is not in human nature to surrender 
power without a desperate struggle, and the successors of King 
John were always ready to evade the plainest promises of an in- 
strument which they alleged was only binding on the monarch' who 
had granted it. We are not, then, to imagine that the usurpations 
and oppressions of the crown ceased with the giving of the char- 



230 RISE OF PARLIAMENTARY REPRESENT ATTOST. 

ter. Far from it. 1 It was in consequence of royal wrongs that 
the necessity of further guarantees of rights came to be manifest 
to every class in the community, and that the people were from 
time to time compelled to wrest from their sovereigns some part 
of the functions of government, until the crown became the weak- 
est of the three estates. The great advantage acquired through 
the charter to the cause of freedom was this, that the people's or- 
dinary rights were clearly stated and distinctly guaranteed, and 
that the right of revolution and rebellion was acknowledged to 
exist when other rights were outraged by the crown. The hope 
to be derived from these acknowledgments and recognitions lay in 
this, that a free parliament existed, jealous of its liberties and 
watchful of the sovereign, ready, as occasion offered, to restrain his 
power and to provide securities against the overweening claims of 
his prerogative. With such an institution, it could hardly be a 
matter of doubt that checks would be from time to time set on 
royal power, and that new agencies of government would be crea- 
ted which must in the end destroy the autocratic claims of English 
sovereigns, and in their stead erect a commonwealth of freemen. 
Some, perhaps, of the brave barons who took part in the long con- 
test, of which Runnymede was but the first great battle ground, saw 
in the objects they attained a glimmering of something greater for 
posterity than they had yet imagined for themselves ; but these 
were at the best but vague hopes. To overthrow consolidated and 
prescriptive power is no slight task ; and it was only long-contin- 
ued and repeated wrongs which educated them to know and guard 
their rights. Through the long term of years which intervened 
between the death of John and the accession of the Stuarts, there 
is little to be seen but a succession of vain contests, in wild civil 
wars, with now and then a step made or a step lost in the devel- 
opment of constitutional government. Freedom blooms more slowly 
than the century plant of South America ; and once destroyed, it 
cannot be restored to life and vigor but by copious waterings of 
blood. The moral of our illustration needs no exposition. 

We have said that in the Parliament of England, and the rec- 
ognition of its rights of legislation and taxation, lay the chief 
hope of the people. Yet the Parliament as it existed in the reign 



RISE OF PARLIAMENTARY REPRESENTATION. 231 

of John was but the shadow of a representative assembly. It is 
true that Magna Charta promises that the greater barons shall be 
summoned to Parliament by special writ, while all other tenants 
in chief are to be summoned in gross, and that this distinction of 
the barons into greater and lesser, obscure as it is, may be the first 
hint of a representation of the commons. But yet none were ad- 
mitted to the parliamentary assembly but tenants in chief of the 
crown, whether their tenures were great or small. All subfeu- 
datories were excluded. Parliament was, therefore, less a national 
assembly than the feudal council of the immediate vassals of the 
king. We are now briefly to trace its gradual development into 
the present Parliament of England. 

The long and weak reign of Henry III., from 1216 to 1272, 
with all its indiscretions, was eminently favorable to the progress 
of free institutions. Had the reign of such a prince as Edward I. 
succeeded that of John, the charter might have been suppressed ; 
but Henry's long minority, his folly, and his weakness gave the 
barons every opportunity to strengthen and confirm the privileges 
they had won from John. Moreover, the continued civil war 
which soon arose between the barons and the king, revealed the 
fact that either side, in order to success, must gain the affections 
of the commons. Hence the commons were invited to take part 
in Parliament by chosen representatives, and in the following reign 
the principle of popular representation came to be a fundamental 
principle of the English constitution. 

At the accession of this prince in 1216, the Earl of Pembroke, 
the great advocate of the popular cause, was by the Parliament, 
appointed governor of the kingdom, and through his influence the 
charter of King John was revised and confirmed. In 1223, Henry 
was declared of age, and being utterly incapable of governing the 
kingdom, the supreme power was entirely exercised by his justi- 
ciary, Hubert de Burgh. In 1225, when war with France broke 
out, De Burgh was forced to apply to Parliament for an extraor- 
dinary aid ; and one-fifteenth of all movables was granted by the 
barons, on condition that the king should now, in his majority, ratify 
and confirm the charters. This was done. 2 But the war termi- 
nating in disaster, Parliament refused to grant another aid, and 



232 EISE OF PAELTAMENTAEY EEPEESENTATIOK. 

popular indignation hurled the justiciary from power. During 
the discontents which followed the disaster of the English forces, 
Henry added greatly to the disaffection of the people by marrying 
a French princess, Eleanor of Provence, and by introduction 
into the chief places of the court and kingdom of her foreign 
relatives. Enraged at being governed by a band of foreign fa- 
vorites, the barons more than once took arms against the king, who 
just as often swore to dismiss the obnoxious persons, and as often 
broke his oaths. The spirit of dissatisfaction reached its culmi- 
nating point with the defeat of Henry in the French war he had 
undertaken contrary to the advice of Parliament, which forthwith 
peremptorily refused further supplies. The loss of the king's 
French possessions proved of immense advantage to England. The 
king could no longer threaten one part of his dominions with a 
foreign force to be brought from the rest : the barons, separated 
from their continental associations, now regarded themselves as 
English peers rather than as Norman nobles ; and the distinction 
of the Normans from the English began gradually to disappear. 
" The two races," says Macauley, " so long hostile, soon found that 
they had common interests and common enemies ; both were alike 
grieved by the tyranny of a bad king — both were alike indignant 
at the favor shown by the court to the natives of Poitou and Aqui- 
taine. The grandsons of those who had fought under William, 
and the great-grandsons of those who had fought under Harold, 
began to draw near to each other in friendship;" and, as the great 
charter had been the first pledge of their reconciliation, so the 
formation of a representative government was the consummation 
of their identity. 

After his serious repulse, Henry endeavored to conduct his gov- 
ernment without advice or aid from Parliament, but his necessities 
compelled him in 1253 to meet the barons, who solemnly but firmly 
asked for a redress of grievances. The clergy seconded the barons. 
When they assembled in Westminster Hall, the bishops and abbots iu 
their robes went in a solemn procession to the king with lighted 
tapers in their hands, and the archbishops then pronounced the 
fearful sentence of excommunication against whoever should have 
violated the great charter. Terror-stricken, the weak-minded king 



RISE OF PARLIAMENTARY REPRESENTATION. 233 

exclaimed, " So help me God, I will keep the charters inviolate, as 
I am a man, as I am a Christian, as I am a knight, as I am a king !" 
It was in vain. The king's devotion was as temporary as it doubt- 
less was sincere ; and his imprudence now led him to an $ct which 
might have brought about the ruin of his family, but fortunately had 
the happier result of furnishing the occasion for establishing the rep- 
resentative assembly of the English Commons. At the instigation of 
Pope Innocent III., Henry undertook the conquest of Sicily for his 
son Edmund, and the pope supplied him with the sum of 14,000 
marks on a mortgage of his kingdom. Mortgages to popes in those 
days were no empty form : for the successors of St. Peter were good 
stewards of the patrimony of the apostolic fisherman. "When 
Sicily was conquered, the then reigning pope, Alexander IV., 
demanded the immediate completion of their contract under threat 
of excommunication of the king, and interdict of the whole king- 
dom. Driven to despair, he called upon his Parliament to aid him 
in the payment of his debt. They were astonished at the impu- 
dence of the demand that they should pay so vast a debt, which 
they had never authorized him to contract ; and they insisted that a 
committee should be appointed by the Parliament to administer the 
affairs of the kingdom, which their sovereign obviously was unfit 
to govern. The king consented, and the Parliament appointed 
twenty-four persons to conduct the government ; and it was fur- 
thermore resolved, that four knights should be elected in each 
county to represent the grievances of their constituents in the 
next Parliament. But the barons were determined on more 
sweeping reforms. They had learned by long experience how little 
confidence could be reposed in kingly faith or prudence, and they 
determined once for all to cleanse the kingdom from the corrup- 
tion which had grown upon it. For the sake of greater efficiency, 
Simon de Montfort, the ruling spirit among the barons, caused 
twelve instead of twenty-four to be appointed to the task of refor- 
mation, who forthwith dismissed the whole of the king's officers 
and advisers. The king himself became a cipher in the state ; and 
in a monarchy, as Mr. Hallam justly says, a king divested of 
prerogatives by his people, soon appears even to themselves an in- 
jured party The decision and promptness of De Montfort and 



234 RISE OF PARLIAMENTARY REPRESENTATION. 

the twelve barons doubtless carried with it an air of usurpation 
which strengthened the hands of the the royalists; and Prince 
Edward flew to arms to vindicate the lost prestige of royalty. He 
was speedily defeated, the king prince were taken prisoners, 
and de Montfort, who had no desire to found a tyranny, deter- 
mined to summon a parliament which should give a constitutional 
sanction to the acts he was determined to accomplish. The royal- 
ists of course were chiefly in the ranks of the nobility ; while the 
citizens of London, and the commons generally, were enthusiastic 
for the cause of Leicester. It was obviously the policy of Leices- 
ter to call the citizens and commons to his aid. Writs were 
therefore issued, ordering the Sheriff to elect and return two 
knights for each county, and two burgesses and citizens for each 
borough and city respectively ; and thus the principle of represen- 
tation was established in the English Government, and the founda- 
tion of the present House of Commons laid. 3 

The conduct of the commons in this Parliament was a striking 
proof that the people of a country are always more ready to endure 
the government to which they are accustomed, while it is in any 
degree tolerable, than to fly into the uncertainties of revolution. 
Much as they had suffered at the hands of Henry, and deeply as 
they sympathized with Leicester, they had no desire to overturn 
the throne or change the constitution of their country. On the con- 
trary, while they were firm in their demand for the redress of griev- 
ances, and stipulated that the chief authority should rest with 
Leicester, yet they no less steadily demanded the restoration of the 
king and the enlargement of the prince. Their wishes were accom- 
plished ; and the first result was that Prince Edward, making his 
escape, gathered an army, overthrew Simon, the son of Leicester, in 
the battle of Kenilworth, and turning to meet Leicester, who was 
hastening to the succor of his son, surrounded and destroyed his 
army, giving no quarter to any rank. Leicester himself was slain, 
but long lived in the affections of his countrymen, especially of the 
commons, as the champion of liberty and equal rights. He was for 
generations known among them as Sir Simon the Righteous ; and 
though he died excommunicate, the popular credulity believed that 
notable miracles were wrought at his tomb. 



RISE OF PARLIAMENTARY REPRESENTATION. 235 

For once the king now acted with prudence. Conscious of his 
weakness, notwithstanding the late triumph, he appears to have 
shown no disposition to trample on the charters or to reassert those 
ancient claims of prerogative which would have plunged the king- 
dom once more into revolt. Measures of retribution against the 
late rebels were left to Parliament ; but the rigorous acts of this 
assembly, consisting as it now did of those barons only who 
had been the steady partisans of Henry, produced such dis- 
turbances that Henry wisely overruled them. Nor did his modera- 
tion end here. His most powerful partisan, the Earl of Gloucester, 
taking umbrage at some measures of the court, rose in rebellion 
and seized the tower of London. The disturbance was, by a mild 
course, soon brought to an end ; the earl was freely pardoned, and 
the kingdom was restored to quiet. But the king was sensible that 
he must now concilitate the commons also to his cause, if he would 
hold his kingdom in tranquillity ; for with them remained the bal- 
ance of power in any discord between him and the barons. He 
accordingly determined by the advice of his council to convene a 
Parliament on the plan of Leicester, in which counties, cities, and 
boroughs 4 should be duly represented : and this body, from which 
many good laws— called the Statutes of Malbridge — emanated, having 
been assembled by the free will of the king and barons, with a dis- 
tinct concession of a right of parliamentary representation to the Com- 
mons, is justly regarded as the first body of constitutional English 
legislators, in which the House of Commons was a constituent part. 

During the rest of Henry's reign he lived in peace ; and having 
in a period of bloodshed and rebellion, reaped the bitter fruits of 
violence and usurpation, he at length enjoyed in quiet, honor, and 
security, the blessings which could only have been won for him and 
his distracted kingdom by a course of prudence, moderation, and 
conciliation. But the fiery Edward who succeeded him was made 
of sterner stuff than the weak Henry; and in other circumstances 
this great sovereign might have swept away the limitations of the 
royal power which had been made during the last two reigns. But 
his own energy embarrassed him. His victorious wars in England 
and Scotland speedily impoverished his treasury ; and when affairs 
upon the Continent demanded an immediate expedition into France, 



236 RISE OF PARLIAMENTARY REPRESENTATION. 

Edward, who had never yet confirmed the charters of the previous 
reigns, resorted to measures of the most violent nature to provide 
the necessary funds. Without the consent of Parliament he levied 
tallages on all personal property, both of barons and commons, made 
an arbitrary tax on wool, and demanded of merchants loans equal to 
the full value of their cargoes. A strong spirit of resistance was 
aroused. Henry Bohun, Earl of Hereford, and Roger Bigod, Earl 
of Norfolk, resisted the exactions of the king and so intimidated 
the officers of the crown as to compel them to desist. They even 
refused to allow troops to be mustered for the expedition into 
France, alleging that the levy was unlawful, they not being bound 
to render military service otherwise than in attendance on the royal 
person, and declaring that they would not go unless the king him- 
self went. Indignant at this unexpected opposition to his will, 
Edward is said to have exclaimed to Hereford, " By the eternal 
God, sir earl, you either go or hang !" Ct By the same oath, sir king," 
said the undaunted noble, " I will neither go nor hang !" With this 
defiance the two earls departed to their castles and many of the 
barons followed their example. Edward's affairs admitted no 
delay ; and having endeavored to win over the populace of London, 
and to conciliate the clergy to his cause, he departed into Flanders. 
Thereupon the clergy sided with the country, and ere long the war- 
like Edward was by force of circumstances driven to subscribe a 
confirmation of the charters of the previous reigns ; and moreover to 
assent to the important Statute de tallagio non concedendo, which pro- 
vided that no tallage or aid should be levied without the consent 
of the lords and commons assembled in Parliament ; that in future 
no seizure of wool, hides or other merchandise should be made to 
the crown, and that no tolls or customs should be levied contrary 
to the charters. The better to secure the observance of these 
important provisions, it was enacted that copies of the charters 
should be sent to the sheriff, and justices in Eyre ; that they 
should be publicly read in the cathedrals and sheriff courts, accom- 
panied by a solemn sentence of excommunication against all who 
should presume to violate their sanctity ; and that knights should 
be indifferently chosen in every shire to inquire into every abuse 
and infringement of these statutes, and to grant redress where it 



RISE OF PARLIAMENTARY REPRESENTATION. 237 

was not otherwise provided by law. From this time forth we may 
consider that the right of parliamentary representation was so 
firmly established in the English constitution, that no tax could be 
assessed on any portion of the people, lords or commons, laity or 
clergy, without the express assent of the class or order to be taxed ; 
and it was fortunate that this admission was conceded by so power- 
ful and great a prince as Edward. Hitherto concessions from the 
crown had been extorted from unwise and weak kings ; so that even 
in the people's own minds there was still a doubt whether those 
solemn acts were permanently and unalterably established. But 
when they were ratified by Edward, who, by his contemporaries no 
less than by posterity was admitted to be one of the most wise, saga- 
cious, powerful, and determined monarchs of his age, no doubt 
remained ihat they would stand forever. 6 

" From this period " says Lord Brougham, " we may truly say, 
that the constitution of Parliament, as now established, took its ori- 
gin j and however that body may have occasionally had to struggle 
for its privileges, how often soever it may have submitted unwor- 
thily to oppression, how little soever it may have shown a determi- 
nation to resist cruelty and injustice, and even the disposition to 
become the accomplice in such acts, we must allow that, generally 
speaking, it has ever since the end of the thirteenth century, formed 
a substantive and effective part of the constitution, and that the 
monarchy then assumed the mixed form which it now wears. 
" The English nation," continues the same noble author, " ought 
piously to hold in veneration the memory of those gallant and virtu- 
ous men who thus laid the foundation of a constitution to which 
they are so justly attached. The conduct of the barons in John's 
reign is indeed above all praise, because it was marked by as much 
moderation and wisdom as firmness of purpose and contempt of 
personal danger." " But to withstand the measures of Edward, a 
prince unequalled by any who had reigned in England, since the 
Conqueror, for prudence, valor and success, required a far more 
intrepid patriotism ; " it is therefore to the sacred names of Henry 
Bohun, Earl of Hereford and Essex, and Roger Bigod, Earl of 
Norfolk, that we must award the meed of praise as the greatest 
patriots England has produced : and it is to the reign of Edward 



238 RISE OF PARLIAMENTARY REPRESENTATION. 

that we must refer the firm and final settlement of the great prin- 
ciples of constitutional liberty in England. 6 

It is easier to lose than to win back. From the conquest by 
the Normans to the confirmation of the charters by king Edward 
I., and the enactment of the statute de talhgio, two hundred and 
thirty years of wrong, oppression, usurpation, rebellion, civil dis- 
cord, and intestine war were suffered ; and nearly four hundred 
years of contest and vicissitude had yet to pass, before the rights so 
long acknowledged and so clearly understood, were to be quietly 
enjoyed : — a lesson which the freemen of all nations should not fail 
to bear in mind when they are tempted, on whatever grounds, to 
sacrifice their liberties to a supposed necessity. 



NOTES. 

3. Tone of English Government from Magna Charta to Henry VI. — Al- 
though the restraining hand of Parliament was continually growing more effectual, 
and the notions of legal right acquiring more precision from the time of Magna 
Charta to the wars under Henry VI., we must justly say that the general tone 
of administration was not a little arbitrary. The whole fabric of English liber- 
ty rose step by step, through much toil and many sacrifices ; each generation 
adding some new security to the work, and trusting that posterity would perfect 
the labor, as well as enjoy the reward. A time, perhaps, was even then fore- 
seen, in the visions of generous hope, by the brave knight3 of Parliament, and 
by the sober sages of justice, when the proudest ministers of the crown should 
recoil from those barriers which were then daily pushed aside with impunity. 

There is a material distinction to be taken between the exercise of the king's 
undeniable prerogative, however repugnant to our improved principles of free- 
dom, and the abuse or extension of it to oppressive purposes. For we cannot 
fairly consider as part of our ancient constitution, what the Parliament was per- 
petually remonstrating against, and the statute book is full of enactments to 
repress. Doubtless the continual acquiescence of a nation in arbitrary govern- 
ment, may alternately destroy all privileges of positive institution, and leave 
them to recover, by such means as opportunity shall offer, the natural and im- 
prescriptible rights for which human societies were established. And this may, 
perhaps, be the case at present with many European kingdoms. But it would 
be necessary to shut our eyes with deliberate prejudice against the whole tenor 
of the most unquestionable authorities, against the petitions of the commons, 



RISE OF PARLIAMENTARY REPRESENTATION. 239 

the acts of the legislature, the testimony of historians and lawyers, before we 
could assert that England acquiesced in those abuses and oppressions, which, it 
must be confessed, she was unable fully to prevent. — Hallam's Middle Ages, 
vol. iii. p. 146. 

2. Hume, on Charter of Henry III. — " Thus these famous charters were 
brought very nearly to the shape in which they have ever t-ince stood ; and 
they were, during many generations, the darling of the English nation, and 
esteemed the most sacred rampart to national liberty and independence. As 
they secured the rights of all orders of men, they were anxiously defended by 
all, and became the basis, in a manner, of the English monarchy, and a kind of 
original contract, which both limited the authority of the king, and ensured the 
conditional allegiance of his subjects. Though often violated, they were still 
claimed and recalled by the nobility and people ; and as no precedents were 
supposed valid that infringed them, they rather acquired than lost authority 
from the frequent attempts made against them in several ages by regal and ar- 
bitrary power." 

3. Leicester's Parliament. — The commencement of the year 1265 is rendered 
forever memorable by a measure destined to have the most important influence 
on the development of the British constitution ; and which, as it has been ele- 
gantly expressed, has " afforded proof from experience that liberty, order, power 
and wealth are capable of being blended together in a degree of harmony which 
the wisest men had not before believed to be possible." Hitherto the great coun- 
cils of the nation had consisted only of the prelates, barons, and tenants in chief 
of the crown ; but Leicester, in the summons for a parliament at this time, direct- 
ed the " sheriffs to elect and return two knights for each county, two citizens for 
each city, and two burgesses for each borough in the county ; thus establishing 
the principle of representation, and giving the people of the towns, who had 
hitherto been taxed at will, a share in the legislature of the realm. By a fortu- 
nate chance also, they were allowed to sit along with the knights of the shire and 
not in a separate chamber ; a circumstance which greatly contributed to give 
them dignity and importance. That Leicester could have foreseen the full effects 
of what he was doing is not to be supposed. The measure was one which, in the 
natural course of things, must inevitably have occurred within a few years ; depu- 
ties for the towns had sitten for the last century in the Cortes of Spain ; towns 
were everywhere rising into importance, and becoming of too great weight in 
the balance of states to be any longer subject to the arbitrary power of princes 
and nobles. Leicester may, doubtless, have seen much of this, but his probable 
motive was merely to the parliament members who he knew would be wholly 
devoted to himself, and the ready agents of his will." — Keightley's History of 
England, vol. L p. 221. 

4. Admission of Borough Representatives to Parliament. — Separation of the 
two Houses. — There is no great difficulty in answering the question why the 



240 KISE OF PABLTAMENTARY REPRESENTATION. 

deputies of boroughs were finally and permanently ingrafted upon Parliament 
by Edward I. The government was becoming constantly more attentive to the 
wealth that commerce brought into the kingdom, and the towns were becoming 
more flourishing and more independent. But, chiefly, there was a much strong- 
er spirit of general liberty, and a greater discontent at violent acts of preroga- 
tive, from the era of Magna Charta ; after which authentic recognition of free 
principles, many acts which had seemed before but the regular exercise cf 
authority, were looked upon as infringements of the subject's right. Among these 
the custom of setting tallages at discretion would naturally appear the most intol- 
erable ; and men were unwilling to remember that the burgesses who paid them 
were indebted for the rest of their possessions to the bounty of the crown. In 
Edward I.'s reign, even before the great act of confirmation of the charters had 
rendered arbitrary impositions absolutely unconstitutional, they might perhaps 
excite louder murmurs than a discreet administration would risk. Though the 
necessities of the king, therefore, and his imperious temper, often led him to 
this course, it was a more prudent counsel to try the willingness of his people, 
before he forced their reluctance, and the success of his innovation rendered 
it worthy repetition. Whether it were from the complacency of the commons 
at being thus admitted among the peers of the realm, or from a persuasion that 
the king would take their money if they refused it, or from inability to withstand 
the plausible reasons of his ministers, or from the private influence to which the 
leaders of every popular assembly have been accessible, much more was granted 
in subsidies, after the representation of the towns commenced, than had ever 
been extorted in tallages. 

It has been a very prevailing opinion, that Parliament was not divided into 
two houses at the first admission of the commons. If by this is only meant that 
the commons did not occupy a separate chamber till some time in the reign of 
Edward III., the proposition, true or false, will be of little importance. They 
may have sat at the bottom of Westminster Hall, while the lords occupied the 
upper end. But that they were ever intermingled in voting, appears inconsist- 
ent with likelihood and authority. The usual object of calling a parliament 
was to impose taxes; and these, for many years after the introduction of the 
commons, were laid in different proportions upon the three estates of the realm. 
Thus, in the 23 E. I., the earls, barons, and knights gave the king an eleventh, 
the clergy a tenth, while he obtained a seventh from the citizens and bur- 
gesses ; in the twenty-fourth of the same king, the two former of these orders 
gave a twelfth, the last an eighth ; in the thirty-third year, a thirtieth was the 
grant of the barons and knights and of the clergy, a twentieth of the cities and 
towns ; in the first of Edward II., the counties paid a twentieth, the towns a 
fifteenth ; in the sixth of Edward III., the rates were a fifteenth and a tenth. 
These distinct grants imply distinct grantors ; for it is not to be imagined that 
the commons intermeddled in those affecting the lords, or the lords in those of 
the commons. In fact, however, there is abundant proof of their separate exist- 
ence long before the seventeenth of Edward III., which is the epoch assigned by 



RISE OF PAELIAMEOTARY REPRESENTATION. 241 

Carte, or even the sixth of that king, which has been chosen by some other wri- 
ters. Thus the commons sat at Acton Burnell in the eleventh of Edward I., 
while the upper house was at Shrewsbury. In the eighth of Edward II., " the 
commons of England complain to the king and his council, &c." These must 
surely have been the commons assembled in Parliament, for who else could thus 
have entitled themselves ? In the nineteenth of the same king we find several 
petitions, evidently proceeding from the body of the commons in Parliament, 
and complaining of public grievances. The roll of 1 E. III., though mutilated, 
is conclusive to show that separate petitions were then presented by the com- 
mons, according to the regular usage of subsequent times. And, indeed, the 
preamble of 1 E. III., stat. 2, is apparently capable of no other inference. 

5. Final Settlement of the English Parliament. — In the Parliament held at 
Gloucester in 1407 (9 Henry TV.), we find the constitution of Parliament finally 
settling into its present form. The king had assembled the lords, spiritual and 
temporal, into his presence, and a debate took place between them about the 
state of the kingdom, and its defence ; and on the necessity that the king should 
have an aid and subsidy. The king demanded of the lords what aid would be 
sufficient and requisite ; who answered that, considering the necessity of the 
king on the one side, and the poverty of his people on the other, no less aids 
could be sufficient than those which they then specify. The king then sent to 
the commons, to cause a certain number of their body to come before the king 
and the lords ; and the commons sent twelve of their companions, to whom the 
answer given by the lords was communicated. It was the pleasure of the king 
that the commons should report to their fellows, to the end that they might take 
the shortest course to comply with the intention of the lords. But the report 
having been made to the commons, they were greatly disturbed at it, saying and 
asserting it to be much to the prejudice and derogation of their liberties. The 
king became alarmed by the intelligence of the displeasure of the commons, and 
it is stated on the roll that " the king, after he had heard this, not willing that 
anything should be done at present, or in time to come, that might any wise 
turn against the liberty of the estate for which they are come to Parliament, nor 
against the liberty of the lords, wills, and grants, and declares, by the advice 
and consent of the lords, that it shall be lawful for the lords to commune among 
themselves in this present Parliament, and in every other in time to come, in ab- 
sence of the king, of the state of the realm, and of the remedy necessary for the 
same. And that, in like manner, it should be lawful for the commons, on their 
part, to commune together of the state and remedy aforesaid. Provided always, 
that the lords, on their part, and the commons, should not make any report to 
the king of any grant, by the commons granted and the lords assented to, nor of 
the communications of the said grants, before the lords and commons should be 
of one assent and accord in such matters, and then in manner and form as had 
been accustomed : that is, by the mouth of the speaker of the commons. The 
king willing, moreover, by assent of the lords, that the communication made in 
11 



242 EISE OF PARLIAMENTARY REPRESENTATION. 

that Parliament, as before stated, should not be drawn into example in time to 
come, nor turn to the prejudice or derogation of the liberty of the estate for 
which the commons were then come, neither in that parliament nor in any other 
in time to come ; but he willed that himself, and all the estates, should be as 
free as they were before." 

But notwithstanding these solemn arrangements, the rights of the commons 
were not observed, and the commons, in the Parliament held in 1414 (2 Henry 
V.), made a protestation against statutes passed without their assent. In a peti- 
tion addressed to the king, they assert it to be their liberty and freedom that 
there should be no statute nor law made, unless they gave thereto their assent ; 
" considering that the commons of your land, which is, and ever hath been, a 
member of your Parliament, are as well assenters as petitioners ; that from this 
time forward, on complaint of the commons of any mischief, asking remedy by 
the mouth of their speaker, or by written petition, there be no law made there- 
upon, and engrossed as statute and laws, neither by additions nor diminutions, 
nor by any manner of terms which should change the sentence, and the intent 
asked by the speaker's mouth, or the petitions given in writing ; considering our 
sovereign lord, that it is nowise the intent of your commons, that if they ask 
you, by speaking or by writing, two things or three, or as many as they list, but 
that it ever stand in the freedom of your high regalie to grant which of them 
that you list, and to deny the remainder." To this the king's answer was as 
follows: — " The king, of his grace especial, granteth that from henceforth noth- 
ing be enacted to the petitions of his commons that be contrary of their asking, 
whereby they should be bound without their assent ; — saving always to our liege 
lord his royal prerogative, to grant and deny what he lists of their petitions and 
askings aforesaid." * — Rowland's English Constitution, p. 104 et seq. 

6. Rowland on the Origin of Parliamentary Representation. — It will not be 
found unprofitable to peruse the following resume of the subject from Rowland's 
English Constitution, though it does not exactly present the same view as the 
text. 

By the feudal system, as has been explained, large estates were granted to 
the Norman barons, on condition of military service and suit in the king's court ; 
and these barons, with the prelates — the latter in right of their baronies — formed 
the great council of the king. The councils were summoned by the king at his 
pleasure and by his writ — the common mode of communicating his commands 
to all ranks of persons and public bodies. The councils, after the Conquest, 
were often called parliaments — a name which was applied to assemblies of various 
kinds ; to the Aula Regis, and to the convention from which the great charter 
issued, which was called Parliamentum Runnymedce. 

In progress of time, as the original baronies escheated and returned to the 
crown, it became the policy of the king to divide them into smaller baronies, and 

* Rot. Pari. Henry V. p. 22. This is the first instance on the rolls o." the use of the 
English language. 



EISE OF PAELIAMENTAEY EEPEESENTATION. 243 

thus to provide adherents against the power of the greater barons. But the 
new grants were made to the new grantees as tenants in capite, and they thus 
became of the same order as the greater barons ; but not being possessed of the 
same wealth and power, they came to be distinguished as the lesser or smaller 
barons. They were equally entitled with the great barons to be summoned to, 
and to sit in, the great council. But although they possessed that right, and 
regarded it as a privilege and distinction attached to their order, attendance at 
the council was a burden, and they were satisfied to be exempt from it, or with 
only an occasional attendance. 

The great numbers of the military tenants of the crown, whether called lesser 
barons or, knights (for both were tenants in capite of the king, and any distinc- 
tion between them soon merged in their common knighthood), would have made 
it difficult for the king to summon them individially and personally by his writ 
or letter, like the great barons. Magna Charta solved the difficulty by providing 
that " for holding the general council of the kingdom to assess aids, and for the 
assessing of scutages, we shall cause to be summoned the archbishops, bishops, 
abbots, earls, and great barons (majores barones) of the realm, singly by our 
letters ; and furthermore, we will cause to be summoned in general by our 
sheriffs and bailiffs all others who hold of us in capite.' 1 '' This separation of the 
baronage into two classes — those summoned by writs, directed to each individ- 
ually, and those summoned by sheriffs, under the direction of writs addressed to 
them — laid the foundation of the distinction which afterward arose between the 
ranks of nobility and gentry. 

The next step toward the representation of the inferior class, arose from the 
necessity of consulting the convenience as well of the king and council, as of 
the knights themselves. The knights were a numerous class in each county. 
All persons holding land under the crown as tenants-in-chief, of the yearly value 
of twenty pounds, were compellable to receive knighthood. The attendance of 
so large a body, even if it were practicable, would have rendered deliberation 
impossible. Attendance by representatives must, therefore, when it was desired 
to act upon the provision of Magna Charta, have suggested itself as the natural 
mode of giving effect to the general but impracticable right ; and thus repre- 
sentation of the counties arose. An election of representative knights took place 
at the county court, before the sheriff; the choosers (as the electors are called 
in the ancient statutes) being the knights themselves ; but whether with or with- 
out the freeholders, is a question much controverted. At the present day the 
counties are supposed to be represented by actual knights. The writ directs the 
sheriff to return two knights ; and each member, when his election is declared, 
is girt with a sword, to supply the fiction of knighthood. 

But Magna Charta — out of which the representation of the counties by 
knights, as members of the feudal union, may be considered to have almost 
directly sprung — gave not the remotest ground for foreseeing, as a coming event, 
the attendance in the great council, of representatives of cities and boroughs ; it 
provided, as we have seen, that the city of London and all other cities and bor- 



244 RISE OF PARLIAMENTARY REPRESENTATION. 

oughs, should have their ancient liberties and free customs ; but these places, at 
the time of Magna Charta, were too completely excluded from the feudal union, 
to be allowed any share whatever in the national government. London was, 
indeed, a city of considerable importance ; but the other cities and boroughs, 
with the exception of a few to whom charters of immunity had been granted, 
belonged to the king or the great barons, who treated them as property, exact- 
ing from them toll or tallage. But as trade and commerce extended, the cities 
and boroughs increased in population ; and as their citizens and burgesses then 
also increased in power and importance, they were able to procure or to force 
from their lords, charters of liberties, which were numerously granted in the 
reign of John ; so that, in the reign of Henry III., they had begun to acquire self- 
government, and oftentimes the ownership of land in the vicinity of the city or 
borough ; and, what was more important, the abolition of the arbitrary power 
of tallage, by the substitution of a fee farm rent, or rent certain. The charters 
by which these changes were produced, were often wrung from the lords of the 
boroughs ; and they have been well called treaties of peace between the bur- 
gesses and their lords. 

It is remarkable that the first summoning of representatives of counties and 
boroughs to a great council, did not proceed from the sovereign, but from a fac- 
tion which, in the reign of Henry III., obtained, for a time, the command of 
the kingdom. Henry had displeased his subjects by his devotion to and his en- 
richment of foreigners. He paid no regard to the great charter, or to the laws 
which it promulgated, although he was forced frequently to recognize and 
confirm it. The pusillanimity of his character was unequal to the control of 
the turbulent barons ; many of the most powerful of whom lived in continual 
opposition to his administration and government. At length Simon de Mont- 
fort, Earl of Leicester, conspired with other barons to get the king into their 
power. They forced him to call a great council or parliament at Oxford, which 
assembled there on the 11th of June, 1258 ; it consisted of the prelates and 
barons only ; they came to the assembly armed, and attended by their military 
vassals, and the king found himself a prisoner in their hands. Through their 
coercion, certain laws were passed, called " The Provisions of Oxford," which, 
until they were revoked by the restored authority of the king, took all power 
from him, and put the government under the control of twenty-four selected 
barons. Civil war was the result : a battle was fought between the king and 
the barons, at Lewes, on the 14th of May, 1264, in which the king's army was 
routed, and the king surrendered himself prisoner to the barons ; his son, Prince 
Edward, being detained a hostage in Dover Castle. 

Through this success, Leicester acquired the exercise of the sovereign 
power ; and to strengthen his power, by increasing his popularity, he summoned, 
in the name of the captive king, a great council or parliament, to meet in Lon- 
don on 20th of January, 1265, in the forty-ninth year of Henry's reign. The 
record of this parliament exists : it shows that twenty-three lay lords, and one 
hundred and twenty-two ecclesiastics, including abbots, priors, and deans, at- 



EISE OF PAELIAMENTAEY REPEESENTATION. 245 

tended the assembly. Leicester also ordered the attendance of two knights 
from each shire, and two citizens and burgesses from each city and borough. 
That is the origin of the representation of the people. The writs for summon- 
ing this parliament are the earliest writs of summons now extant on record. 
Some historians have contended that earlier instances of representation may be 
inferred from the facts and documents of history ; but the best authorities and 
the highest research have made it manifest that the assembly convened by Simon 
de Montfort is the first instance of popular representation in parliament. — Row- 
land's Manual of the English Constitution, p. ^l— 75. 



CHAPTEE VI. 

TRIAL BY JURY.— THE HIGH COURT OF STAR-CHAMBER.-- 
SLAVERY IN ENGLAND. 

OBSERVATIONS ON THE PERIOD FROM EDWARD I. TO THE STUARTS ESSENTIAL FEA- 
TURE OF THE JURY TRIAL THE ROMAN JURY TRIAL PECULIARITY OF THE 

ENGLISH JURY TRIAL — ITS ORIGIN IN THE SAXON COURTS — COMPURGATORS 

RECOGNITORS TRIAL BY PEERS IN MAGNA CHARTA WITNESSES CALLED IN AID 

OF JURORS UNDER EDWARD III. MODERN CONSTITUTION OF THE JURY SETTLED 

UNDER HENRY IV. SUBSEQUENT CHANGES BLACKSTONE ON THE JURY TRIAL 

COURT OF STAR-CHAMBER — ITS ORIGIN HOW SETTLED UNDER HENRY VII. 

ITS JURISDICTION UNDER HENRY VIII. — HISTORICAL DISCUSSION — MODE OF PRO- 
CEDURE ITS ABUSES AND EFFECTS CIVIL JURISDICTION OF THE STAR-CHAM. 

BER — ITS ENORMITIES DESCRIBED BY CLARENDON — OBSERVATIONS — SAXON 
SLAVERY IN ENGLAND GENERAL REMARKS ON SLAVERY ACCOUNT FROM HAL- 
LAM OF ITS GRADUAL DISAPPEARANCE IN ENGLAND CONCLUSION. 

The constitutional history of England, from the reign of Ed- 
ward I. to that of James I., hardly falls within the scope of the 
present volume. Our object is to trace the gradual recognition of 
rights, and the still more gradual development of constitutional 
contrivances for their protection. The period just indicated was 
preeminently barren in such matters. The rights of English sub- 
jects may be fairly taken to have been completely recognized by 
the statute de tallagio ; and, from the epoch of the settlement of 
Parliament on its present basis, no change of importance took place 
in the English constitution. Such changes as occurred were merely 
local peculiarities, embodying no principle, and developing no gen- 
eral truth. They are therefore not within the scope of a work 
which aims at utility to the American citizen, rather than the en- 
lightenment of the laborious student in English jurisprudence. 

Yet the period which intervened between the two reigns above 



TRIAL BY JURY. 247 

mentioned, is by no means the least interesting to the student. 
Throughout the whole of it we see the doubtful struggle of free 
institutions for existence. We behold a Parliament at one time so 
strong and so conscious of its strength, as to depose the sovereign 
of the country from his kingly office, and change the succession to 
the crown j 1 and at another, we behold the same great council stoop- 
ing from its high prerogative, to become the servile register of 
kingly proclamations, legalizing, in advance, the acts of royal tyran- 
ny : a and it is startling to observe that at the very time when knowl- 
edge was increasing, and a right conception of the true foundation 
of all government was becoming most clear, the nearest approach to 
despotism was made by English monarchs. Of the line of princes 
who have governed England, from the Conqueror down, none have 
been more completely arbitrary in their sway than the Tudors. 
Yet it is precisely in their reigns that the most rapid strides were 
made in knowledge, and that the clearest expositions of the rights 
of subjects were produced. No one since the time of Hooker, has 
excelled that writer in the clearness of his views on government ; 
yet his writings were produced under the arbitrary reign of 
Elizabeth. 3 

But neither do we propose to enlarge on these apparently para- 
doxical phenomena. There is, however, one great institution which 
attained nearly its present form during this period, and which, 
from its immense importance, we conceive it necessary to trace 
through the various phases of its history. We mean Trial by 
Jury. And there are two other English institutions to be named 
hereafter, from which we believe important lessons may be learned ; 
and for a sketch of which we think the present is the proper place. 
But first of Juries. 

I. The essential feature of the Jury Trial is that it provides 
two judges, one of whom decides the law in the particular case to 
be determined, while to the other is reserved the duty of pronouncing 
on the facts, and rendering a final judgment thereupon according to 
the law as it has been previously expounded. This, we say, is the 
essential feature of the Jury Trial, separated from the adjuncts 
which have been connected with it in the common law of England 
and the United States; and this separation of the trial of the law 



248 TRIAL BY JURY. 

from the trial of the facts, conducing as it obviously does to equity 
in judicial procedures, is by no means novel in the history of juris- 
prudence. 

Among the Romans, the trial of a cause was first held before 
the Prastor. To him the prosecutor stated his case without any 
evidence of its truth : the defendant in like manner made his an- 
swer ; and the Praetor then stated the law in the case. With the 
truth or falsehood of the statements made by prosecutor and de- 
fendant, the Praetor had no concern whatever. He simply cited 
the law to show what would be the legal decision of the cause if 
the facts were as had been alleged on either hand. This was called 
the trial injure, or trial of the law. On its conclusion the cause 
was committed to a court of jurors (judices), for decision by a 
trial injudicio, or final judgment of the facts ; which ended the pro- 
ceedings. How the Roman judices were selected is not altogether 
certain. It appears, however, that they were a body of official per- 
sons from whom details were made for the trial of particular cases. 
Nor is the number of the jurors known. But it is probable that it 
was varied according to the importance of the cause to be decided. 
This mode of trial was the ordinary mode among the Romans. 
Extraordinary trials were occasionally held — perhaps at the pleas- 
ure of the parties to the suit — in which the whole matter was left 
to the Prastor, who then pronounced the law, decided on the facts, 
and rendered judgment. Under the emperors, as might have been 
anticipated, the principle of consolidation, which was so triumphant 
in the executive and legislative powers, was soon extended to the 
judicial. The office of the judices fell into disuse ; the extraor- 
dinary trial by the Praetor, became the ordinary course of justice ; 
and the Roman jury trial — for so it may with perfect truth be called 
— was utterly abolished. Despotism has little love for juries. 

The peculiar feature of the English jury trial, is the choice of 
jurors from the whole body of freemen, dwelling within the juris- 
diction of the court which tries the cause ; and this, which is in 
fact the greatest safeguard of the citizen against the arbitrary des- 
potism of executive authority, is the legitimate outgrowth of the 
Saxon system. We have already described (chap. I.) the folk- 
courts of the Saxons in their hundreds and counties, in which the 



TRIAL BY JURY. 249 

assembled freemen of the district decided both the law and facts of 
the causes brought before them, and the ealdorman, though he no 
doubt instructed and advised them, had no power to force or alter 
their decision. These courts were unquestionably common to all 
the Germanic tribes who founded kingdoms in the middle and 
southern parts of Europe at the fall of the empire. The Ari- 
manns among the Franks, the Rachinbourgs among the Lombards, 
and the loni homines among all the tribes, had originally, no doubt, 
the same institutions, and the same privileges as the freemen of the 
Anglo-Saxons of England. And if it be asked why the jury trial 
should have grown up step by step in England to its present form, 
while no such institution has arisen on the Continent, the answer 
is an obvious one. For on the Continent, the German conquerors 
fell very shortly into the legal system of the Roman colonists they 
had subdued, and hence the code and practice of the imperial courts 
came to be very generally substituted for the rude methods of ad- 
ministering justice they had hitherto pursued. In England, on 
the contrary, the Roman laws could have no influence upon the 
Saxons. England had been totally deserted by the Romans, and 
the aboriginal inhabitants were so completely subjugated by the 
invaders that the greater part took refuge in the fastnesses of 
Wales, where they maintained a savage independence till the reign 
of Edward I., and those who still remained among the invaders 
were reduced to abject slavery. Before the Saxon tribes in Eng- 
land every vestige of the Roman government and jurisprudence dis- 
appeared ; and in respect to juries and all other matters the folk 
courts were left to follow out their course of natural development. 
It may be well to state, in this connection, that the development of 
jury trial in England was but hindered by the Norman conquest. 
For though the feudal courts held by the lords among their vassals 
must have had a much more extensive jurisdiction than the like 
courts of the Saxon earls among the ceorls belonging to their 
mound, yet the folk courts were not by any means abolished. On 
this subject we have spoken in a former chapter. We shall now 
proceed to trace the steps by which the tumultuous jury of the 
Saxon folk courts gradually formed itself into the modern English 
and American jury. 
11* 



250 TRIAi BY JURY. 

Among the Germanic tribes the ordinary way of settling ques- 
tions was originally by means of conjurators or compurgators, a method 
concerning which there has been and still is much controversy. 
According to some writers, and among them a no less authority than 
Mr. Sharon Turner, the compurgators — whose number varied with 
the importance of the case — were essentially a committee of the 
folk court empowered regularly to try the cause, to hear the tes- 
timony brought by the parties, and to render a judicial verdict. If 
this view of the case be true, these compurgators lacked but one 
particular of being identical with our own jurors ; and indeed the 
parties who sustain it, further hold that at the period of the con- 
quest, jury trial was already as completely perfected among the 
Saxons as it is among ourselves. Of this, to say the least, there 
must be very grave doubts ; and the evidence adduced in proof of 
it is not sufficient to sustain the theory. But neither, on the other 
hand, is there sufficient evidence adduced by their opponents in the 
opposite extreme. These men affirm that compurgators, so far from 
being jurors, were not even witnesses of facts, but persons who, 
without the slightest knowledge of the facts, might be brought for- 
ward either by the plaintiff or the defendant to swear to their be- 
lief of the probability or improbability of the complaint or charge 
made. And it is further maintained that the decision of the cause 
was given to the party who produced the greater number of com- 
purgators, or whose compurgators were of higher rank than those 
of his opponent. It is difficult to believe that any system so 
absurd could have prevailed in any country ; and although it would 
appear that some such system did for a time prevail among the 
Frankish tribes, analogy is not enough to prove that it was ever 
settled as an institution among the Saxons. Truth lies probably 
between the two extremes of these opinions. It is likely that the 
oaths of compurgators, intimately acquainted with the parties to 
the cause, had great weight with the voters in the folk courts, 
especially as it was always probable that they would have a know- 
ledge of the cause at issue, and that witnesses for either party 
would be sought by him among his compurgators. Bat it is not 
likely that the testimony of witnesses was disregarded or excluded, 

Be this as it may, the functions of the compurgators were speed- 



TRIAL BY JURY. 251 

ily determined, and ere long we find them under the new appella- 
tion of recognitors. These were persons chosen from the neighbor- 
hood of the matter to be tried — generally twelve or some multiple 
of twelve — whose office it was to decide the cause from their own 
knowledge, and from the information they were able personally to give 
each other. As they were themselves chosen on account of tbeir 
acquaintance with the litigants and the matters in litigation, they 
heard no witnesses, and received no allegations, but in cases of 
doubt they were required to state the ground on which they ren- 
dered their decision or verdict (vere dictum), which was always given 
on oath. When these recognitors were first employed is doubtful. 
Some would fix the date long before the conquest, others not till 
afterward. In this case likewise the truth probably lies between. 
There is no date at which this step toward jury trial was univer- 
sally made. It was adopted doubtless by some shire and hundred 
motes long before the conquest, but it probably did not become a 
universal institution before a later date ; and it is not before the 
period of the Norman reigns that we have documentary proof that 
it had been accomplished — a circumstance at which we cannot be 
surprised when we consider the destruction of the Saxon monuments 
and records which was made by the Conqueror. 

From the date of Magna Charta we have little difficulty in 
tracing the remaining steps of jury trial. When it had been de- 
creed that no freeman should be taken or imprisoned, or dis- 
possessed, or banished, or in any way destroyed, but by the lawful 
judgment of his peers, it could not but be that a people jealous of 
its rights, and daily growing in enlightenment and civilization, should 
improve upon the rude contrivances of an epoch less advanced in 
knowledge, and as yet untrained by wrongs to guard their rights. 

It was an obvious defect in the system of recognitors, that they 
were not permitted to call witnesses to their assistance ; and in the 
reign of Henry III., we find that witnesses on either side were 
joined with the recognitors, in one body, for the trial of the cause. 
This constitution of the jury must undoubtedly have been often 
perverted to injustice in a manner that would naturally suggest its 
own remedy. 

Accordingly, in the reign of Edward III., a. d. 1350, witnesses 



252 TEIAL BY JURY. 

were called in aid of the recognitors, to whom they gave their 
testimony. They were not, however, joined with them, and took no 
part in their decision. Here, therefore, we may join with the 
historian of the court of Chancery, Mr. Spencer, in saying that the 
jury was complete in its developments, and that it now remained 
only that proper regulations for its action should be framed, and 
due restrictions brought to bear on it for the prevention of abuses, 
in order to present it in that perfect form which is the pride of 
England and America. 

And now that the recognitors were permitted to call witnesses 
in evidence, little was necessary to be added to the constitution of 
the jury trial, but that it should be protected against irregular 
and improper testimony, and that its proceedings should be so di- 
rected as to insure the gravity becoming in a court of justice. 
Therefore, in the reign of Henry IV., a most important change was 
made, which put the jury under the direction of the judges in open 
court. The witnesses were now required to give their evidence in 
presence of the judges, who controlled the whole proceedings of the 
court and jury, and rejected all such evidence as was improper to 
be given. Since that time witnesses have not been questioned merely 
by jurors, but submitted to examination by the judge, the jury, and 
the counsel in the cause ; so that their evidence is fairly tested in 
a searching cross-examination, and the court has every opportunity 
of judging from their manner and appearance how much -credit is 
to be reposed in what they say. 4 The jury trial was thus brought 
into its present state. The separation of the trial of the law from 
the trial of the facts was now complete, and while the assistance of 
a competent judge was afforded to the jurors to instruct them in 
the law and aid them in receiving testimony, the decision of the 
cause was not left to a single person, who might be the corrupt 
appointee of an unscrupulous and arbitrary Government, but to a 
jury of freemen, whose interest it must be to sustain rights which 
were their own. 

One change only remained to be made. Hitherto the jurors or 
recognitors had been selected from the neighborhood in which the 
crime had been committed, or the property in litigation lay — a 
provision, which, when the recognitors rendered their verdict from 



TItlxYL BY JURY, 253 

personal knowledge, was essential ; but which, now that more re- 
liance was reposed in the extraneous depositions of witnesses, was 
likelier to cause prejudice, and a perversion of the judgment of the 
juror, that would lead him to give little heed to the importance of 
evidence produced in court, when it might happen to conflict 
with prepossessions of his own. To remedy this evil — for an evil 
it was felt to be — " numerous partial changes were made from time 
to time, until, by statutes in the reigns of Anne and of George II., 
the rule requiring the jurors to be summoned from the vicinage 
was abolished, and the selection was directed to be made from the 
county at large. And by a decison of the court of King's Bench, 
it was declared that if a jury gave a verdict upon their own pri- 
vate knowledge, it was an error, and that they ought to have informed 
the court, so that they might have been sworn as witnesses. This 
brought trial by jury to its present perfected condition. As anciently 
a most careful scrutiny was made to select such men only as were 
familiar with the parties and the facts, the endeavor is now equally 
strenuous to obtain such alone as are absolutely unacquainted with 
the parties and circumstances of the case, and shall stand unbiassed 
by any preconceived opinions and prejudices." (Pomeroy's Municipal 
Zmv, p. 76.) 

Thus, then, from this rapid and imperfect sketch, the reader will 
perceive that jury trial, like all other guarantees of human free- 
dom, has proceeded from a slight germ through ages of progress, 
every step of which is marked in blood, rebellion, revolution, to 
that perfect consummation which it is our right now to enjoy. This 
venerable institution, which from the first Saxon settlement in 
England, to the reign of George the Second, must be counted to 
have passed through nearly thirteen centuries of growth — this 
venerable institution, cherished by our Revolutionary fathers, who 
declared that in these States the sacred English right of trial by 
jury should never be denied — this venerable institution is not 
merely threatened in this free (?) Republic, it is trampled under 
foot. And yet the people hesitate ! The writer of these pages is 
no party politician, but thus much a student may say even to the 
statesman : It is easier to pull down than to build up ! The oak 
that grows for ages perishes before the woodman iu an hour, and 



254 TRIAL BY JURY. 

liberty, which, grows more slowly, perishes as quickly if the vio- 
lence of arbitrary power is suffered, unrebuked, to rise against it. 
To the American citizen there is at present a sad warning in the 
termination of the first of the following glowing paragraphs from 
Blackstone : 

" The trial by jury ever has been, and I trust ever will be, 
looked upon as the glory of the English law. And if it has so 
great an advantage over others in regulating civil property, how 
much must that advantage be heightened when it is applied to 
criminal cases ! It is the most transcendent privilege which any 
subject can enjoy or wish for, that he cannot be affected either in 
his property, his liberty, or his person, but by the unanimous con- 
sent of twelve of his neighbors and equals. A constitution that I 
may venture to affirm has, under Providence, secured the just lib- 
erties of this nation for a long succession of ages. And, therefore, 
a celebrated French writer, who concludes that because Rome, 
Sparta, and Carthage have lost their liberties, therefore those of 
England in time must perish, should have recollected that Rome, 
Sparta, and Carthage, at the time when their liberties were lost, were 
strangers to the trial by jury. 

" Great as this eulogium may seem, it is no more than this ad- 
mirable constitution, when traced to its principles, will be found in 
sober reason to deserve. The impartial administration of justice, 
which secures both our persons and our properties, is the great end 
of civil society, but if that be entirely intrusted to the magistracy 
(a select body of men, and those generally selected by the prince, 
or such as enjoy the highest offices of the state), their decisions, 
in spite of their own natural integrity, will have frequently an in- 
voluntary bias toward those of their own rank and dignity ; it is 
not to be expected from human nature that the few should be always 
attentive to the interests and good of the many. On the other hand, 
if the power of judicature were placed at random in the hands of 
the multitude, their decisions would be wild and capricious, and a 
new rule of action would be every day established in our courts. 
It is wisely therefore ordered that the principles and axioms of law, 
which are general propositions, flowing from abstracted reason, and 
not accommodated to times or to men, should be deposited in the 



TRIAL BY JURY. 255 

breasts of the judges, to be occasionally applied to such facts as 
come properly ascertained before them. For here partiality can 
have little scope ; the law is well known and is the same for all 
ranks and degrees; it follows as a regular conclusion from the 
premises of fact preestablished. But in settling and adjusting a 
question of fact when intrusted to any single magistrate, partiality 
and injustice have an ample field to range in; either by boldly 
asserting that to be proved which is not so, or by more artfully 
suppressing some circumstances, stretching and warping others, and 
distinguishing away the remainder. Here, therefore, a competent 
number of sensible and upright jurymen, chosen by lot from among 
those of the middle rank, will be found the best investigators of 
truth, and the surest guardians of public justice. For the most 
powerful individual in the state will be cautious of committing 
any flagrant invasion of another's right, when he knows that the 
fact of his oppression must be examined and decided by twelve in- 
different men, not appointed till the hour of trial ; and that when 
once the fact is ascertained, the law must of course redress it. This, 
therefore, preserves in the hands of the people that share which 
they ought to have in the adminstration of public justice, and pre- 
vents the encroachments of the more powerful and wealthy citizen. 
Every new tribunal, erected for the decision of facts, without the 
intervention of a jury (whether composed of justices of the peace, 
commissioners of the revenue, judges of a court of conscience, or 
any other standing magistrates), is a step toward establishing aris- 
tocracy, the most oppressive of absolute governments. The feudal 
system, which, for the sake of military subordination, pursued an 
aristocratical plan in all its arrangements of property, had been 
intolerable in times of peace, had it not been wisely counterpoised 
by that privilege, so universally diffused through every part of it, 
the trial by the feudal peers. And in every country on the Continent, 
as the trial by the peers has been gradually disused, xo the nobles have 
increased in power, till the state has been torn to pieces by rival fac- 
tions, and oligarchy, in effect, has been established, though tinder the shadow 
of regal government, unless where the miserable commons have taken shelter 
under absolute monarchy, as the lighter evil of the two. And partic- 
ularly, it is a circumstance well worthy an Englishman's observa- 



256 HIGH COURT OF STAR CHAMBER. 

tion, that in Sweden the trial by jury, that bulwark of Northern 
liberty, which continued in its full vigor so lately as the middle of 
the last century, is now fallen into disuse: and that there, though the 
regal power is in no country so closely limited, yet the liberties of the 
commons are extinguished, and the government is degenerated into a mere 
aristocracy. It is therefore, upon the whole, a duty which every 

MAN OWES TO HIS COUNTRY, HIS FRIENDS, HIS POSTERITY, AND HIMSELF, 
TO MAINTAIN TO THE UTMOST OF HIS POWER THIS VALUABLE CONSTITU- 
TION IN ALL ITS RIGHTS; TO RESTORE IT TO ITS ANCIENT DIGNITY, IF AT 

all impaired by the different value of property, or otherwise devi- 
ated from its first institution ; to amend it wherever it is defect- 
ive ; AND ABOVE ALL, TO GUARD WITH THE MOST 
ZEALOUS CIRCUMSPECTION AGAINST THE INTRO- 
DUCTION OF NEW AND ARBITRARY METHODS OF 
TRIAL, WHICH, UNDER A VARIETY OF PLAUSI- 
BLE PRETENCES, MAY IN TIME IMPERCEPTIBLY 
UNDERMINE THIS BEST PRESERVATIVE OF ENG- 
LISH LIBERTY." (Blackstone, vol. iii. p. 378-381.) 

II. Despotism, as we have said, has little partiality for juries ; 
and when royalty in Engand failed to crush out the free spirit of 
the people, and to sweep away the safeguard of the ordinary jury 
trial, it availed itself of the tyrant's ever ready and generally 
plausible plea — necessity — to erect a court which should be wholly 
in the royal interests, and utterly subservient to the crown. This 
court was the High Court of Star Chamber — an institution which 
from the reign of Charles I. has had no parallel in England or 
America, until, in 1861, a Secretary of State of these United States 
assumed to concentrate its powers in his own person — powers so 
monstrous, so iniquitous, so utterly repugnant to the plainest prin- 
ciples of justice, that their exercise conduced in no small degree to 
bring about that revolution which brought Charles I. to the block ; 
whose exercise in France produced the scathing whirlwind of 
another and more bloody revolution ; which here in these United 
States — our Secretaries would do well to lay aside. 

The Star Chamber is said to have been in early times one of the 
apartments of the king's palace at Westminster allotted for the 
despatch of public business. The Painted Chamber, the White 



HIGH COURT OF STAR CHAMBER. 257 

Chamber, and the Charnbre Markolph were occupied by the triers 
and receivers of petitions, and the king's council held its sittings 
in the Camera Stellata, or Charnbre des Estoylles, which was so 
called probably from some remarkable feature in its architecture 
or embellishment. 

" The lords sitting in the Star Chamber " is used as a well- 
known phrase in records of the time of Edward III., and the name, 
becoming permanently attached to the jurisdiction, continued long 
after the local situation of the court was changed. The judicature 
of the -court of Star Chamber appears to have originated in the 
exercise of a criminal and civil jurisdiction by the king's council, 
or by that section of it which Lord Hale calls the Consilium Ordi- 
narium, in order to distinguish it from the Privy Council, who were 
the deliberative advisers of the crown. (Hale's Jurisdiction of the 
Lords 1 House, ch. v. ; Palgrave's Essay on the Original Authority 
of the King's Council.) The exercise of jurisdiction by the king's 
council was considered as an encroachment upon the common law, 
and being the subject of frequent complaiut by the Commons, was 
greatly abridged by several acts of Parliament in the reign of 
Edward III. It was discouraged also by the common law judges, 
although they were usually members of the council ; and from the 
joint operation of these, and some other causes, the power of the 
Concilium Regis as a court of justice had materially declined 
previously to the reign of Henry VII , although, as Lord Hale 
observes, there remain " some straggling footsteps of their proceed- 
ings " till near that time. 

The statute of the 3d Henry VII. c. i. empowered the chancellor, 
treasurer, and keeper of the privy seal, or any two of them, calling 
to them a bishop and temporal lord of the council and the two 
chief justices, or two other justices in their absence (to whom the 
president of the council was subsequently added), upon bill or infor- 
mation exhibited to the lord chancellor or any other, against any 
person for maintenance, giving of liveries, and retainers by inden- 
tures or promises, or other embraceries, untrue demeanings of sheriffs 
in making panels and other untrue returns, for taking of money 
by juries, or for great riots or other unlawful assemblies, to call the 
offenders before them and examine them, and punish them accord- 



258 HIGH COUET OF STAE CHAMBER. 

ing to their demerits. The object and effect of this enactment are 
extremely doubtful. It appears to have been the opinion of the 
courts of law at the time the statute was passed that it established 
a new jurisdiction entirely distinct from the ordinary jurisdiction 
of the council ; for, five years afterward, it was resolved by all the 
judges, according to the plain words of the law, that the only 
judges of the court under the statute were the lord chancellor, 
the treasurer, and the keeper of the privy seal, the bishop and tem- 
poral lord being merely " called to them " as assistants or assessors, 
and not as constituent members of the court. This view of the 
effect of the statute is confirmed by the fact that, more than forty 
years afterward the president of the council was expressly added 
to the judges of the court; u a decisive proof," as Mr. Hallam ob- 
serves, that it then existed as a tribunal perfectly distinct from the 
council itself. 

However this may have been, there is no doubt that previously 
to the time of Coke, this court, whether distinct, or only a modifi- 
cation of the ancient jurisdiction, had again so completely merged 
in the general jurisdiction of the lords of the council, as to justify 
his statement that the opinion expressed in the judicial resolution 
was " contrary to continual experience." Sir Thomas Smith, who 
wrote his u Treatise on the Commonwealth of England," in the 
year 1565, makes no mention of a limited court, though he treats 
particularly of the court of Star Chamber, and says that the judges 
were the lord chancellor, the lord treasurer, all the king's council, 
and all peers of the realm ; and he ascribes the merit of having re- 
newed the vigor of the court to Cardinal Wolsey. i At the begin- 
ning of the reign of Elizabeth, therefore, the court of Star Cham- 
ber was unquestionably in full operation, in the form in which it 
was known in the succeeding reigns ; and at this period, before it 
had degenerated into a mere engine of state, it at least appeared 
to be by no means destitute of utility. It was professedly the only 
court in the land in which great and powerful offenders had no 
means of setting at defiance the administration of justice, or of cor- 
rupting its course. And during the reign of Elizabeth, when the 
jurisdiction of the Star Chamber had reached its maturity, it seems, 
except in political cases y to have been administered with wisdom and 



HIGH COURT OF STAR CHAMBER. 259 

discretion. In trials having any political tendency, it is needless to 
observe that this court never was, nor indeed, could be equitable 
in its jurisdiction. 

The proceedings in the court of Star Chamber were by infor- 
mation, or bill and answer ; interrogatories in writing were also ex- 
hibited to the defendant and witnesses, which were answered on 
oath. The attorney-general had the power of exhibiting ex-officio 
informations ; as had also the king's almoner to recover deodands 
and goods of a felo-de-se, which were supposed to go in support of 
the king's alms. In cases of confession by accused persons, the 
information and proceedings were oral ; and hence arose one of the 
most oppressive abuses of the court in political persecutions. The 
proceeding by written information and interrogatories was tedious 
and troublesome, often involving much nicety in pleading, and al- 
ways requiring a degree of precision in setting forth the accusation, 
which was embarrassing in a state prosecution. It was with a view 
to these difficulties that Lord Bacon, on one occasion, discouraged 
the king from adopting this mode of proceeding, saying that " the 
Star Chamber, without confession, was long seas." In political 
charges, therefore, the attorney-general derived a great advantage 
over the accused by proceeding ore tenus. The consequence was, 
that no pains were spared to procure confessions, and pressure of 
every kind, including torture, was unscrupulously applied. Ac- 
cording to the laws of the court, no person could be orally charged, 
unless he acknowledged his confession at the bar, "freely and vol- 
untarily, without constraint." But this check upon confessions im- 
properly obtained, seems to have been much neglected in practice 
during the later periods of the history of this court. " Therein," 
says Hudson, writing in the reign of James L, " there is sometimes 
dangerous excess ; for, whereas the delinquent confesseth the of- 
fence, sub modo, the same is strained against him to his great dis- 
advantage. Sometimes many circumstances are pressed and urged 
to aggravate the matters which are not confessed by the delinquent, 
which surely ought not to be urged, but what he did freely confess, 
and in the same manner. And happy were it if these might be 
restrained within their limits, for that this course of proceeding is 
an exuberancy of prerogative, and, therefore, great reason to keep 



260 HIGH COURT OF STAR CHAMBER. 

it within the circumference of its own orb." Upon admissions of 
immaterial circumstances, thus aggravated and distorted into con- 
fessions of guilt, the Earl of Northumberland was prosecuted ore 
tenus in the Star Chamber, for being privy to the gunpowder plot, 
and was sentenced to pay a fine of £30,000, and to be imprisoned 
for life, " but by what rule," says Hudson, 'that sentence was, I 
know not, for it was ore tenus, and yet not upon confession." And 
it frequently happened during the last century of the existence of 
the Star Chamber, that enormous fines, imprisonments for life, or 
during the king's pleasure, banishment, mutilation, and every vari- 
ation of punishment short of death, were inflicted by a court com- 
posed of members of the king's council, upon a mere oral proceed- 
ing, without hearing the accused, without a written charge or re- 
cord of any kind, and without appeal. 

The civil jurisdiction of the Star Chamber comprehended mer- 
cantile controversies between English and foreign merchants, testa- 
mentary causes, and differences between the heads and commonalty 
of corporations, both lay and spiritual. The court also disposed 
of the claims of the king's almoner to deodands, as above referred 
to, and also such claims as were made by subjects to deodands and 
the goods of convicted felons, by virtue of charters from the crown. 
The criminal jurisdiction of the court was very extensive. If the 
king chose to remit the capital punishment, the court had jurisdiction 
to punish as crimes even treason, murder, and felony. Under the 
comprehensive name of contempts of the king's authority, all offen- 
ces against the state were included, forgery, perjury, riots, main- 
tenance, embracery, fraud, libels, conspiracy, and false accusation : 
misconduct by judges, justices of the peace, sheriffs, jurors, and 
other persons connected with the administration of justice, were all 
punishable in the Star Chamber. 

A court of criminal judicature, composed of the immediate 
agents of prerogative, possessing a jurisdiction very extensive, and 
at the same time imperfectly defined, and authorized to inflict any 
amount of punishment short of death, must, even when best 
administered, have always been viewed with apprehension and 
distrust; and accordingly in the earlier periods of its history we 
find constant remonstrances by the commons against its encroach- 



HIGH COURT OF STAR CHAMBER. 261 

ments. As civilization, knowledge, and power increased among 
the people, the jurisdiction of the lords of the council became 
more odious and intolerable. Unfortunately, too, the court of 
Star Chamber, which at one time appears to have been serviceable 
in the manner described by Sir Thomas Smith, " as bridling such 
stout noblemen or gentlemen which would offer wrong by force to 
any manner of men, and could not be content to demand or defend 
the right by order of law, degenerated in the reigns of James I. 
and Charles I. into a mere engine of state, and was employed as 
one of the main instruments for the assertion of prerogative, pre- 
tension, and the enforcement of illegal taxation. "They extended 
their jurisdiction," says Clarendon, " from riots, perjury, and the 
most notorious misdemeanors to the asserting of all proclamations and 
orders of state ; to the vindicating of illegal commissions and grants of 
monopolies ; holding for honorable that which pleased, and for just that 
which prof ted; and becoming loth a court of law o determine civil 
rights, and a court of revenue to enrich the treasury ; the council table 
by proclamation enjoining to the people that which was not enjoined by 
the laws, and prohibiti?ig that which was not prohibited ; and the Star 
Chamber, which consisted of the same persons in different rooms, cen- 
suring the breach and disobedience to these proclamations by very great 
fines, imprisonments, and corporal severities ; so that any disrespect to 
any acts of state, or to the persons of statesmen, were in no time more 
penal, and the foundations of right never more in danger to be de- 
stroyed." 

Let the patriotic American of this day carefully read this de- 
scription by Lord Clarendon of the usurped prerogatives of the 
Star Chamber court of England, weighing calmly each expression 
as he comes thereto : let him then think of the condition of his 
country at the present moment, and the more than kingly preroga- 
tives usurped by our court of star chamber, the President and cab- 
inet, in presidential "proclamations and orders of state," which 
have " enjoined upon the people that which is not enjoined by the 
laws, and prohibited that which by the laws is not prohibited ; " in 
illegal " commissions " issued to so-called military governors of 
sovereign States and a multitude of unnecessary officers whose 
functions have no legal sanction or authority — in grants of cotton 



262 SLAVERY IN ENGLAND. 

" monopolies " so freely issued from the Treasury Department to the 
partisans of the Administration — in the holding for " loyal " of that 
which pleases a mere faction of the people, and for "just" of a 
dishonest legal-tender paper currency, which is the reverse of pro- 
fitable " — in the erection of the President or any member of his cab- 
inet into a sufficient u court of law to determine civil rights," and 
thereupon to trample on them — in the empowering of major-gen- 
erals and others to assume that they may hold courts both of law 
and " revenue," in which they confiscate estates and money which do 
not " enrich the treasury " — and in the punishment of disobedience 
to these proclamations and other usurpations "by very great fines " 
unlawfully assessed, by arbitrary " imprisonments" in forts and arse- 
nals of the United States, and " by corporal severities " at the 
Dry Tortugas and elsewhere — let him, we say, thus read, thus med- 
itate, and then declare to his own conscience whether he believes 
" that any disrespect to acts of state " has ever been " more penal " 
than it has been in these States for three years past, and whether 
" the foundations of right " were ever " in more danger to be de- 
stroyed " than they are now, to-day. These questions must ere long 
be effectually answered, or we and our posterity must reap a bitter 
harvest from the seeds of tyranny we madly suffer a corrupt Admin- 
istration to sow over every one of our most ancient and most 
cherished rights and institutions. 

For the present we must leave the High Court of Star Cham- 
ber. We shall have more to say of it when we come to the un- 
happy reign of Charles I. 

III. During this period (from Edward I. to James I.) English 
history supplies us with a pregnant illustration of the wisdom of 
our English ancestors and our own stupendous folly. The insti- 
tution of slavery, in attempting to destroy which, we have perhaps 
destroyed a nation, is no novelty in history. It is the creature 
of peculiar circumstances always, and always disappears with the 
peculiar circumstances which have brought it into being. Slavery 
among the Jews, in Greece, in Rome, in the Germanic kingdoms 
into which the Empire was divided, and in England, thus rose and 
thus passed away ; and the same system in America, had it been 
left to run its natural course, would, in the providence of God, 



SLAVERY IX ENGLAND. 263 

have found its own solution in the influence of natural causes. 
During the period of English history with which we are at pres- 
ent concerned, the problem of Saxon slavery was solved ; and we 
have thought that Hallam's outline of the steps by which this end 
was reached might not improperly be introduced here to show 
how slavery was done away in England, not by legislation or coer- 
cion, and still less by arbitrary royal proclamation, but by a sim- 
ple change in the original circumstances of the masters and their 
slaves ; in order to show further that in any country the same in- 
stitution may be naturally expected to arrive at a like end when 
it has ceased to be of service in the commonwealth. We have pre- 
ferred to give the version of Hallam verbatim, lest it might be 
thought that we had in any way distorted or concealed facts, from 
a desire to give them a peculiar coloring ; and therefore, before giv- 
ing his account, we venture to present the following points to the 
attention of the reader to be borne in mind during his perusal of it : 

1. The Saxon churl was as absolute a slave to the Norman as 
the Southern negro to his master. 

2. The right of the Norman master to the labor of his villain 
was a prescriptive and unquestioned right, in no respect differing 
from that of the American slaveholder. 

3. The abolition of Saxon slavery was not effected by legisla- 
tion, coercion, or proclamation, but was gradual, natural, and for 
the most part voluntary on the master's part. 

4. Had coercive emancipation been attempted by any power 
in the state to the prejudice of the prescriptive rights of masters, 
it cannot be doubted that the Normans would have offered as de- 
termined a resistance to it as they did to every other invasion of 
their rights. Nor can it well be doubted that an attempt at forced 
emancipation, by arousing opposition to it in the Norman masters, 
would have indefinitely delayed the emancipation of the churls. 

5. If it be said that Southern slavery is governed by the strict 
rules of the Roman slave code, and not by the rules of English 
common law, our answer is : That under Roman law, slavery dis- 
appeared as effectually as under English law ; that slavery in any 
country must have some peculiar characteristics which do not exist 
in any other country; that history shows that, soon or late, 



264 SLAVERY EST ENGLAKD. 

the growth of population or some other cause leads to a gradual 
and natural emancipation, independently of law ; and therefore that 
a knowledge of the progress of emancipation in the peculiar case 
of England is peculiarly valuable in any other case where plans 
and systems of emancipation are considered. Judging from all 
past experience— and not least from the experience of England — 
we believe that the best plan is to have no plan, and that the only 
certain system is that which is naturally evolved by circumstances 
in each several case. Interference only retards the progress of 
emancipation. With these remarks we now proceed with Hallam. 

In a former passage I have remarked of the Anglo-Saxon 
churls, that neither their situation nor that of their descendants 
for the earlier reigns after the conquest appears to have been mere 
servitude. But from the time of Henry II., as we learn from 
Grlanvil, the villain so called was absolutely dependent upon his loroVs 
will, compelled to unlimited services, and destitute of property, not only 
m the land he held for his maintenance* hut in his own acquisitions. If 
a villain purchased or inherited land, the lord might seize it ; if he 
accumulated stock, its possession was equally precarious. Against 
his lord he had no right of action, because his indemnity in dam- 
ages, if he could have recovered any, might have been immediately 
taken away.. If he fled from his lord's service, or from the land 
which he held, a writ issued de nativitate probanda, and the master 
recovered his fugitive by law. His children were born to the same 
state of servitude ; and contrary to the rule of the civil law, where 
one parent was free and the other in villainage, the offspring followed 
the father's condition. 

This class was distinguished into villains regardant, who had 
been attached from time immemorial to a certain manor, and villains 
in gross, where such territorial prescription had never existed, or 
had been broken. In the condition of these, whatever has been 
said by some writers, I can find no manner of difference ; the dis- 
tinction was merely technical, and affected only the mode of plead- 
ing. The term, in gross, is appropriated in our legal language to 
property held absolutely and without reference to any other. Thus 
it is applied to rights of advow.son or of common, when possessed 
simply, and not as incident to any particular lands. And there can 



SLAVERY IN ENGLAND. 265 

be no doubt that it was used in the same sense for the possession 
of a Tillain. But there was a class of persons, sometimes inaccu- 
rately confounded with villains, whom it is more important to 
separate ; villainage had a double sense, as it related to persons or 
to lands. As all men were free or villains, so all lands were held 
by a free or villain tenure. As a villain might be enfeoffed of free- 
holds, though they lay at the mercy of his lord, so a freeman might 
hold tenements in villainage. In this case his personal liberty sub- 
sisted along with the burdens of territorial servitude. He was 
bound to arbitrary service at the will of the lord, and he might, 
by the same will, be at any moment dispossessed, for such was 
the condition of his tenure. But his chattels were secure from 
seizure, his person from injury, and he might leave the land whenever 
he pleased. 

From so disadvantageous a condition as this of villainage, 
it may cause some surprise that the peasantry of England should 
have ever emerged. The law incapacitating a villain from acquir- 
ing property, placed, one would imagine, an insurmountable barrier 
in the way of his enfranchisement. It followed from thence, and is 
positively said by Glanvil, that a villain could not buy his freedom, 
because the price he tendered would already belong to his lord ; and even 
in the case of free tenants in villainage, it is not easy to comprehend 
how their uncertain and unbounded services could ever pass into 
slight pecuniary commutations, much less how they could come to 
maintain themselves in their lands, and mock the lord with a 
nominal tenure according to the custom of the manor. 

This, like many others relating to the progress of society, is a 
very obscure inquiry. We can trace the pedigree of princes, fill up 
the catalogue of towns besieged and provinces desolated, describe 
even the whole pageantry of coronations and festivals, but we cannot 
recover the genuine history of mankind. It has passed away with 
slight and partial notice by contemporary writers, and our most 
patient industry can hardly at present put together enough of the 
fragments to suggest a tolerably clear representation of ancient 
manners and social life. I cannot profess to undertake what would 
require a command of books as well as leisure beyond my reach; 
12 



266 SLAVERY IN ENGLA1SD. 

but the following observations may tend a little to illustrate our 
immediate subject, the gradual extinction of villainage. 

If we take what may be considered as the simplest case, that of a 
manor divided into demesne lands of the lord's occupation, and those 
in the tenure of his villains, performing all the services of agricul- 
ture for him, it is obvious that his interest was to maintain just so 
many of these as his estate required for its cultivation. Land, the 
cheapest of articles, was the price of their labor ; and though the 
law did not compel him to pay this or any other price, yet neces- 
sity, repairing in some degree the law's injustice, made those pretty 
secure of food and dwelling, who were to give the strength of their 
arms for his advantage. But in course of time, as alienations of 
small parcels of manors to free tenants came to prevail, the proprie- 
tors of land were placed in a new situation relatively to its cultiva- 
tors. The tenements in villainage, whether by law or usage, were 
never separated from the lordship, while its demain was reduced to 
a smaller extent, through subinfeudations, sales, or demises for valua- 
ble rent. The purchasers under these alienations had occasion for 
laborers; and these would be free servants in respect of such em- 
ployers, though in villainage to their original lord. As he demand- 
ed less of their labor, through the diminution of his domain, they 
had more to spare for other masters ; and, retaining the character of 
villains and the lands they held by that tenure, became hired labor- 
ers in husbandry for the greater part of the year. It is true that 
all their earnings were at the lord's disposal, and that he might 
have made a profit of their labor, when he ceased to require it for 
his own land. But this, which the rapacity of more commercial 
times would have instantly suggested, might escape a feudal superior, 
who, wealthy beyond his wants, and guarded by the haughtiness of 
ancestry against the desire of such pitiful gains, was better pleased 
to win the affection of his dependants, than to improve his fortune 
at their expense. 

The services of villainage were gradually rendered less onerous and 
uncertain. Those of husbandry indeed are naturally uniform, and 
might be anticipated with no small exactness. Lords of generous 
tempers granted indulgences which were either intended to be or 
readily became perpetual. And thus, in the time of Edward I., 



SLAVERY IN ENGLAND. 267 

we find the tenants in some manors bound only to stated services 
as recorded in the lord's book. Some of these perhaps might be 
villains by blood ; but free tenants in villainage were much more 
likely to retain this precision in their services ; and from claiming 
a customary right to be entered in the court-roll upon the same 
terms as their predecessors, prevailed at length to get copies of it 
for their security. Proofs of this remarkable transformation from 
tenants in villainage to copyholders are found in the reign of Henry 
III. I do not know however that they were protected at so early 
an epoch in the possession of their estates. But it is said in the 
year book of the 42d of Edward III. to be " admitted for clear 
law, that if the customary tenant or copyholder does not perform 
his services, the lord may seize his land as forfeited." It seems 
implied herein that so long as the copyholder did continue to per- 
form the regular stipulations of his tenure, the lord was not at 
liberty to divest him of his estate ; and this is said to be confirmed 
by a passage in Britton, which has escaped my search; though 
Littleton intimates that copyholders could have no remedy against 
their lords. However, in the reign of Edward IV. this was put 
out of doubt by the judges, who permitted the copyholder to bring 
his action of trespass against the lord for dispossession. 

While some of the more fortunate villains crept up into prop- 
erty as well as freedom under the copyholders, the greater part 
enfranchised themselves in a different manner. The law which 
treated them so harshly, did not take away the means of escape ; 
nor was this a matter of difficulty in such a country as England. 
To this, indeed, the unequal progression of agriculture and popula- 
tion in different counties would have naturally contributed. Men 
emigrated, as they always must, in search of cheapness or employ- 
ment, according to the tide of human necessities. But the villain 
who had no additional motive to urge his steps away from his 
native place, might well hope to be forgotten or undiscovered 
when he breathed a freer air, and engaged his voluntary labor to 
a distant master. The lord had indeed an action against him ; 
but ihotre was so little communication between remote parts of the 
country, that it might be deemed his fault or singular ill fortune 
if he were compelled to defend himself. Even in that case the law 



268 SLAVEEY IN ENGLAND. 

inclined to favor him ; and so many obstacles were thrown in the 
way of these suits to reclaim fugitive villains, that they could not 
have operated materially to retard their general enfranchisement. 
In one case, indeed, that of unmolested residence for a year and a 
day within a walled city or borough, the villain became free, and 
the lord was absolutely barred of his remedy. This provision is 
contained even in the laws of William the Conqueror, as contained 
in Hoveden, and, if it be not an interpolation, may be supposed to 
have had a view to strengthen the population of those places which 
were designed for garrisons. This law, whether of William or not, 
is unequivocally mentioned by Grlanvil. Nor was it a mere letter. 
According to a record in the sixth of Edward II., Sir John 
Clavering sued eighteen villains of his manor of Cossey, for with- 
drawing themselves therefrom with their chattels ; whereupon a 
writ was directed to them ; but six of the number claimed to be 
freemen, alleging the Conqueror's charter, and offering to prove 
that they had lived in Norwich, paying scot and lot, about thirty 
years ; which claim was admitted. 

By such means a large proportion of the peasantry before the 
middle of the fourteenth century had become hired laborers instead 
of villains. We first hear of them on a grand scale, in an ordi- 
nance made by Edward III., in the twenty- third year of his reign. 
This was just after the dreadful pestilence of ^ 1348, and it recites 
that, the number of workmen and servants having been greatly 
reduced by that calamity, the remainder demanded excessive wages 
from their employers. Such an enhancement in the price of labor, 
though founded exactly on the same principles as regulate the value 
of any other commodity, is too frequently treated as a sort of crime 
by lawgivers, who seem to grudge the poor that transient melior- 
ation of their lot, which the progress of population, or other analo- 
gous circumstances, will, without any interference, very rapidly 
take away. This ordinance therefore exacts that every man in 
England, of whatever condition, bond or free, of able body, and 
within sixty years of age, not living of his own nor by any trade, 
shall be obliged, when required, to serve any master who is willing 
to hire him at such wages as were usually paid three years since, 
or for some time preceding • provided that the lords of villains or 



SLAVERY IX EXGLAXD. 269 

tenants in villainage shall have the preference of their labor, so that 
they retain no more than shall be necessary for them. More than 
these old wages is strictly forbidden to be offered, as well as de- 
manded. No one is permitted, under color of charity, to give 
alms to a beggar. And to make some compensation to the inferior 
classes for these severities a clause is inserted, as wise, just and 
practicable as the rest, for the sale of provisions at reasonable 
prices. 

This ordinance met with so little regard that a statute was 
made in Parliament two years after, fixing the wages of all artificers 
and husbandmen, with regard to the nature and season of their 
labor. From this time it became a frequent complaint of the 
commons that the statute of laborers was not kept. The king had 
in this case probably no other reason for leaving their grievances 
unredressed than his inability to change the order of Providence. A 
silent alteration had been wrought in the condition and character 
of the lower classes during the reign of Edward III. This was the 
effect of increased knowledge and refinement, which had been 
making a considerable progress for full half a century, though 
they did not readily permeate the cold region of poverty and igno- 
rance. It was natural that the country people, or uplandish folk, 
as they were called, should repine at the exclusion from that enjoy- 
ment of competence, and security for the fruits of their labor, which 
the inhabitants of towns so fully possessed. The fourteenth century 
was in many parts of Europe the age when a sense of political ser- 
vitude was most keenly felt. Thus the insurrection of the Jacquerie 
in France, about the year 1358, had the same character, and resulted 
in a great measure from the same causes as that of the English 
peasants in 1382. And we may account in a similar manner for 
the democratical tone of the French and flemish cities, and for the 
prevalence of a spirit of liberty in Germany and Switzerland. 

I do not know whether we should attribute part of this revolu- 
tionary concussion to the preaching of WicklinVs disciples, or look 
upon both one and the other as phenomena belonging to that 
particular epoch in the progress of society. New principles, both as 
to civil rule and religion, broke suddenly upon the uneducated 
mind, to render it bold, presumptuous and turbulent. But at least 



270 SLAYEET IN ENGLAND. 

I make little doubt, that the dislike of ecclesiastical power, which 
spread so rapidly among the people at this season, connected itself 
with a spirit of insubordination and an intolerance of political 
subjection. Both were nourished by the same teachers, the lower 
secular clergy ; and however distinct we may think a religious 
reformation from a civil anarchy, there was a good deal common in 
the language by which the populace were inflamed to either one or 
the other. Even the scriptural moralities which were then exhibit- 
ed, and which became the foundation of our theatre, afforded fuel to 
the spirit of sedition. The common original, and common destina- 
tion of mankind, with every other lesson of equality which religion 
supplies to humble or to console, were displayed with coarse and 
glaring features in these representations. The familiarity of such 
ideas has deadened their effects upon our minds ; but when a rude 
peasant, surprisingly destitute of religious instruction during that 
corrupt age of the church, was led at once to these impressive 
truths, we cannot be astonished at the intoxication of mind they 
produced. 

Though I believe that, compared at least with the aristocracy 
of other countries, the English lords were guilty of very little 
cruelty or injustice, yet there were circumstances belonging to that 
period which might tempt them to deal more hardly than before 
with their peasantry. The fourteenth century was an age of greater 
magnificence than those which had preceded, in dress, in ceremo- 
nies, in buildings ; foreign luxuries were known enough to excite an 
eager demand among the higher ranks, and yet so scarce as to 
yield inordinate prices ; while the land-owners were on the other 
hand, impoverished by heavy and unceasing taxation. Hence it 
is probable that avarice, as commonly happens, had given birth to 
oppression ; and if the gentry, as I am inclined to believe, had 
become more attentive to agricultural improvements, it is reason- 
able to conjecture that those whose tenure obliged them to un- 
limited services of husbandry were more harassed than under their 
wealthy and indolent masters in preceding times. 

The storm that almost swept away all bulwarks of civilized 
and regular society seems to have been long in collecting itself. 
Perhaps a more sagacious legislature might have contrived to 



SLAVERY IN ENGLAND. 271 

disperse it ; but the commons only presented complaints of the 
refractoriness with which villains and tenants in villainage rendered 
their due services ; and the exigencies of government led to the 
fatal poll tax of a groat, which was the proximate cause of the 
insurrection. By the demands of these rioters we perceive that 
territorial servitude was far from extinct ; but it should not be 
hastily concluded that they were all personal villains, for a large 
proportion were Kentish men, to whom that condition could not 
have applied ; it being a good bar to a writ de nativitate probanda, 
that the party's father was born in the county of Kent. 

After this tremendous rebellion, it might be expected that the 
legislature would use little indulgence toward the lower commons. 
Such unhappy tumults are doubly mischievous, not more from the 
immediate calamities that attend them, than from the fear and 
hatred of the people which they generate in the elevated classes. The 
general charter of manumission extorted from the king by the 
rioters of Blackheath, was annulled by proclamation to the sheriffs, 
and this revocation approved by the lords and commons in Parlia- 
ment ; who added, as was very true, that " such enfranchisement 
could not be made without their consent ; which they would 
never give to save themselves from perishing altogether in one 
day." Riots were turned into treason by a law of the same 
Parliament. By a very harsh statute in the 12th of Richard II., 
no servant or laborer could depart, even at the expiration of his 
service, from the hundred in which he lived, without permission 
under the king's seal ; nor might any who had been bred to hus- 
bandry till twelve years old, exercise any other calling. A few 
years afterward, the commons petitioned that villains might not 
put their children to school, in order to advance them by the 
Church, " and this for the honor of all the freemen of the king- 
dom." In the same Parliament they complain that villains fly to 
cities and boroughs, whence their masters cannot recover them ; 
and if they attempt it, are hindered by the people ; and prayed 
that the lords might seize their villains in such places, without 
regard to the franchises thereof. But on both these petitions the 
king put in a negative. 

From henceforward we see little notice taken of villainage in 



272 SLAVERY IN ENGLAND. 

parliamentary records, and there seems to have been a rapid ten- 
dency to its entire abolition. But the fifteenth century is barren 
of materials ; and we can only infer that, as the same causes which 
in Edward III.'s time had converted a large portion of the peasant- 
ry into free laborers still continued to operate, they must silently 
have extinguished the whole system of personal and territorial 
servitude. The latter, indeed, was essentially changed by the es- 
tablishment of the law of copyhold. 

I cannot presume to conjecture in what degree voluntary 
manumission is to be reckoned among the means that contributed 
to the abolition of villainage. Charters of enfranchisement were 
very common upon the Continent. They may perhaps have been 
less so in England. Indeed, the statute de donis must have 
operated very injuriously to prevent the enfranchisement of vil- 
lains regardant, who were entailed along with the land. Instances 
however occur from time to time ; and we cannot expect to discover 
many. One appears as early as the fifteenth year of Henry III., who 
grants to all persons, born or to be born within his village of Con- 
tishall, that they shall be free from all villainage in body and blood, 
paying an aid of twenty shillings to knight the king's eldest son, 
and six shillings a year as a quit rent ; so in the 12th of Edward 
III., certain of the king's villains are enfranchised on payment of 
a fine. In strictness of law, a fine from the villain for the sake of 
enfranchisement was nugatory, since all he could possess was 
already at his lord's disposal. But custom and equity might 
easily introduce different maxims ; and it was plainly for the lord's 
interest to encourag.e his tenants in the acquisition of money to 
redeem themselves, rather than to quench the exertions of their 
industry by availing himself of an extreme right. Deeds of en- 
franchisement occur in the reigns of Mary and Elizabeth ; and 
perhaps a commission of the latter princess in 1574, directing the 
enfranchisement of her bondmen and bondwomen on certain manors 
upon payment of a fine, is the last unequivocal testimony to the 
existence of villainage ; though it is highly probable that it existed 
in remote parts of the country some time longer. — Hallam's 
Middle Ages, vol. Ill, pp. 171-182. 

At this epoch, to continue nearly in the language of the 



SLAVERY IN ENGLAND. 273 

author just quoted, we must pause before proceeding with these 
inquiries into the English constitution ; a sketch very imperfect 
and unsatisfactory, but which may at least answer the purpose of 
fixing the reader's attention on the principal objects, and of lead- 
ing him to consult the purest fountains of constitutional knowledge. 
From the accession of the house of Tudor, a new period is to be 
dated in our history ; far more prosperous in the diffusion of opu- 
lence, and the preservation of general order, than the preceding, 
but less distinguished by the spirit of freedom and jealousy of 
tyrannical power. This period, therefore, we shall not attempt to 
illustrate, but pass on to the more tumultuous, but more fruitful 
epoch of the Stuarts. We have already seen, through the twilight 
of our Anglo-Saxon records, a form of civil policy established by 
our ancestors, marked, like the kindred governments of the Con- 
tinent, with aboriginal Teutonic features ; barbarous, indeed, and 
insufficient for the great ends of society, bat capable and worthy 
of improvement, because actuated by a sound and vital spirit, the 
love of freedom and of justice. From these principles arose that 
venerable institution, which none but a free and simple people 
could have conceived, trial by peers ; an institution common in 
some degree to other nations, but which, more widely extended, 
more strictly retained, and better modified among ourselves, has 
become perhaps the first, certainly among the first, of our securities 
against arbitrary government. We have seen a foreign conqueror 
and his descendants trample almost alike upon the prostrate nation, 
and upon those who had been companions of their victory, intro- 
duce the servitudes of feudal law with more than their usual rioor, 
and establish a large revenue by continual precedents upon a sys- 
tem of universal and prescriptive extortion. But the Norman and 
English races, each unfit to endure oppression, forgetting their 
animosities in a common intererst, enforce by arms the concession 
of a great charter of liberties. Privileges wrested from one faith- 
less monarch, are preserved with continual vigilance against the 
machinations of another ; the rights of the people become more 
precise, and their spirit more maguanimous, during the long reign 
of Henry III. With greater ambition and greater abilities than 
his father, Edward I. attempts in vain to govern in an arbitrary 
12* 



274 TEIAL BY JUEY. HIGH COURT OF STAE CHAMBEE. 

manner, and has the mortification of seeing his prerogative fettered 
by still more important limitations. The great council of the 
nation is opened to the representatives of the commons. They 
proceed by slow and cautious steps to remonstrate against public 
grievances, to check the abuses of administration, and sometimes to 
cha.stise public delinquency in the officers of the crown. A num- 
ber of remedial provisions are added to the statutes ; every Eng- 
lishman learns to remember that he is the citizen of a free state, 
and to claim the common law as his birthright, even, though the 
violence of power should interrupt its enjoyment. It were a strange 
misrepresentation of history to assert that the constitution had at- 
tained anything like a perfect state in the fifteenth century; but we 
know not whether there are any essential privileges of our country- 
men, any fundamental securities against arbitrary power, so far as 
they depend upon positive institutions, which may not be traced to 
the. time when the house of Plantagenet filled the English throne. 



NOTES. 

1. Deposition of Richard II by Parliament. — The Parliament closed this 
reign, Richard II. 's, and exercised the supreme power of government by the 
removal of Eichard II. from the throne and the election of Henry, Duke of 
Lancaster, to succeed him as king. The rolls of Parliament describe the pro- 
ceedings at great length : the king's renunciation of the throne, for causes of 
inability and insufficiency by himself confessed ; his absolution of the people 
from all allegiance ; and his recommendation of the duke of Lancaster as his 
successor. The parliament pronounced sentence of deposition against him and 
Henry claimed the vacant throne. The lords spiritual and temporal, and com- 
mons, as the three estates of the realm, accepted Henry as king, he disclaim- 
ing all right by conquest. The justices and other officers of state were 
sworn into their offices, and proclamation was made for his coronation. 
Procurators announced to Richard their acceptance of his resignation, and his 
deposition ; and renounced and gave back to him the homage and fealty formerly 
made to him. 

2. Proclamations of the Sovereign declared by Act of Parliament to have the 
force of Laws. — The Parliament having thus resigned all their ecclesiastical 
liberties, proceeded to an entire surrender of their civil ; and without scruple or 
deliberation they made by one act a total subversion of the English constitution. 



SLAVERY IN ENGLAND. 275 

They gave to the king's proclamations the same force as to a statute enacted 
by Parliament ; and to render the matter worse, if possible, they framed this 
law as if it were only declaratory, and were intended to explain the natural 
extent of the regal authority. The preamble contains, that the king had for- 
meriy set forth several proclamations, which froward persons had wilfully con- 
temned, not considering what a king by his royal power may do ; that this 
license might encourage offenders not only to disobey the laws of Almighty 
God, but also to dishonor the king's most royal majesty, who may full ill bear 
it ; that sudden emergencies often occur, which require speedy remedies, and 
cannot await the slow assembling and deliberations of Parliament ; and that, 
though the king was empowered, by his authority, derived from God, to 
consult the public good on these occasions, yet the opposition of refractory 
subjects might push him to extremity and violence. For these reasons, the 
Parliament, that they might remove all occasion of doubt, ascertained by a 
statute this prerogative of the crown, and enabled his majesty, with the advice 
of his council, to set forth proclamations, enjoining obedience under whatever 
pains and penalties he should think proper ; and these proclamations were to 
have the force of perpetual laws. 

What shows either a stupid or a wilful blindness of Parliament is, that they 
pretended, even after this statute, to maintain some limitations in the govern- 
ment ; and they enacted that no proclamation should deprive any person of 
his lawful possessions, liberties, inheritances, privileges, franchises ; nor yet 
infringe any common law or laudable custom of the realm. They considered 
not that no penalty could be inflicted on the disobedience of proclamations, 
without invading some liberty or property of the subject ; and that the power 
of enacting new laws, joined to the dispensing power, then exercised by the 
orown, amounted to a full legislative authority. — Hume, iv. 207, anno 1539. 

The Parliament also facilitated the execution of the former law, by which 
the king's proclamations were made equal to statutes. They appointed that 
any nine counsellors should form a legal court for punishing all disobedience to 
proclamations. The total abolition of juries in criminal causes, as well as of al 
Parliaments, secured, if the king had so pleased, the necessary consequence of 
this enormous law. He might issue a proclamation for the execution of any 
penal statute, and afterward try the criminals, not for a breach of the statute, 
but for disobedience to his proclamation. It is remarkable, that the lord Mount- 
joy entered a protest against this law ; and it is equally remarkable, that that 
protest is the only one entered against any public bill during this whole reign. — 
Hume, iv. 250, anno 1543. 

This law, the destruction of all laws, by which the king's proclamation was 
made of equal force with a statute, was repealed under Edward VI. During the 
reign of Elizabeth, however, the rights conferred by it upon the sovereign were 
exercised with such extravagance as to be even ridiculous. Hume says : 

In reality, the crown possessed the full legislative power, by means of proc- 
lamations, which might effect any matter, even of the greatest importance, and 



276 TRIAL BY JURY. 

which the Star Chamber took care to see more rigorously executed than the 
Laws themselves. The motives of these proclamations were sometimes very 
frivolous and even ridiculous. Queen Elizabeth had taken offence at the smell 
of woad ; and she issued an edict prohibiting any one from cultivating that 
useful plant. She was also pleased to take offence at the long swords and high 
ruffs then in fashion. She sent about her'officers, to break every man's sword, 
and clip every man's ruff, which was beyond a certain length. — Hume, v. 458. 

3. The following paragraphs will suffice as an illustration of the style and 
views of Hooker. Showing the evils of anarchy, and the necessity of consent to 
the validity of government, he says : 

" To take away all such mutual grievances, injuries, and wrongs, there was 
no way but only growing into composition and agreement amongst themselves, 
by ordaining some kind of government public, and by yielding themselves sub- 
ject thereunto : that unto whom they granted authority to rule and govern, by 
them the peace, tranquillity, and happy estate of the rest might be procured. 
Men always knew that when force and injury was offered they might be defend- 
ers of themselves ; they knew that howsoever men may seek their own commod- 
ity, yet if this were done with injury unto others, it was not to be suffered, but 
by ail men and by all good means to be withstood ; finally they knew that no 
man might in reason take upon him to determine his own right, and according to 
his own determination proceed in maintenance thereof, inasmuch as every man is 
towards himself and them whom he greatly affecteth partial ; and therefore that 
strifes and troubles would be endless, except they gave their common consent 
all to be ordered by some whom they should agree upon : without which con- 
sent there were no reason that one man should take upon him to be lord or 
judge over another ; because, although there be according to the opinion of 
some very great and judicious men a kind of natural right in the noble, wise, and 
virtuous, to govern them which are of servile disposition ; nevertheless for mani- 
festation of this their right, and men's more peaceable contentment on both 
sides, the assent of those who are to be governed seemeth necessary. 

" The lawful power of making laws to command whole politic societies of 
men belongeth so properly unto the same entire societies, that for any prince or 
potentate of what kind soever upon earth to exercise the same of himself, and 
not either by express commission immediately and personally received from God, 
or else by authority derived at the first from their consent upon whose persons 
they impose laws, it is no better than mere tyranny. 

" Laws they are not, therefore, which public approbation hath not made so. 
But approbation not only they give who personally declare their assent by voice, 
sign, or act, but also when others do it in their names, by right originally at the 
least derived from them. As in parliaments, councils, and the like assemblies, 
although we be not personally ourselves present, notwithstanding, our assent ia 
by reason of others, agents there in our behalf. And what we do by others, no 
reason but that it should stand as our deed, no less effectually to bind us than if 
ourselves had done it in person." — Eccl. Pol., Bk. I., ch. x. sec. 2, 3, 4, 8. 



HIGH COUET OF STAE CHAMBEE. 277 

Of limited or constitutional government, usurpation, and the right of revolu- 
tion, Hooker speaks thus : 

" Even in these very actions which are proper unto dominion, there must be 
some certain rule, whereunto kings in all their proceedings ought to be strictly 
tied. 

" The cause cf deriving supreme power from a whole entire multitude unto 
some special part thereof, is partly the necessity of expedition in public affairs ; 
partly the inconveniency of confusion and troubles, where a multitude of equals 
dealeth ; and partly the dissipation which must needs ensue in companies, where 
every man wholly seeketh his own particular. Men by that which is proper are 
severed, united they are by that which is common. Wherefore, besides that 
which moveth each man in particular to seek his private, there must of necessity 
in all public societies be also a general mover, directing unto the common good, 
and framing every man's particular to it. The end whereunto all government 
was instituted, was bonum publicum, the universal or common good." — Eccl. Pol., 
Bk. VIII., ch. ii. sec. 16, 18. 

" First unto me it seemeth almost out of doubt and controversy, that every 
independent multitude, before any certain form of regiment' established, hath, 
under God's supreme authority, full dominion over itself, even as a man not tied 
with the bond of subjection as yet unto any other, hath over himself the like 
power. God creating mankind did endue it naturally with full power to guide 
itself, in what kind of societies soever it should choose to live. A man which is 
born lord of himself may be made another's servant ; and that power which 
naturally whole societies have, may be derived into many, few, or one, under 
whom the rest shall then live in subjection." — Hooker, Bk. VIII., ch. ii. sec. 5. 

" I cannot choose but commend highly their wisdom, by whom the founda- 
tions of this commonwealth have been laid ; wherein though no manner of person 
or cause be unsubject to the king's power, yet so is the power of the king over 
all and in all limited, that unto all his proceedings the law itself is a rule. The 
axioms of our regal government are these : ' Lex facit regem ; ' the king's 
grant of any favour made contrary to the law is void ; ' Rex nihil potest nisi 
quod jure potest.' Our kings therefore, when they take possession of the room 
they are called unto, have it pointed out before their eyes, even by the very sol- 
emnities and rites of their inauguration, to what affairs by the said law their su- 
preme authority reacheth." — Eccl. Pol., Bk. VIII., ch. ii. sec. 13. 

" Subjection therefore we owe, and that by the law of God ; we are in con- 
science bound to yield it even unto every of them that hold the seats of 
authority and power in relation unto us. Howbeit, not all kind of subjection 
unto every such kind of power. Concerning scribes and pharisees, our Saviours 
precept was, ' "Whatsoever they shall tell you, do it ; ' was it His meaning that if 
they should at any time enjoin the people to levy an army, or to sell their lands 
and goods for the furtherance of so great an enterprise ; and in a word, that 
simply whatsoever it were which they did command, they ought without any 
exception forthwith to be obeyed ? No ; but ' whatsoever they shall tell you,' 



278 TRIAL BY JURY. 

must be understood in pertinentibus ad cathedram, it must be construed with 
limitation, and restrained unto things of that kind which did belong to their 
place and power. For they had not power general, absolutely given them to 
command them. • 

" The reason why we are bound in conscience to be subject unto all such 
power, is because all " powers are of God." They are of God either instituting 
or permitting them. Power then is of divine institution when either God him- 
self doth deliver, or men, by light of nature, find out the kind thereof. So that 
the power of parents over children, and of husbands over their wives, the power 
of all sorts of superiors, made by consent of commonwealths within themselves, or 
grown from agreement amongst nations, such power is of God's own institution 
in respect of the kind thereof. 

" As for them that exercise power altogether against order, although the kind 
of power which they have may be of God, yet is their exercise thereof against 
God, and therefore not of God, otherwise than by permission, as all injustice is. 

" Usurpers of power, whereby we do not mean them that by violence have as- 
pired unto places of high authority, but them that use more authority than they 
did ever receive in form and manner before mentioned (for so they may do, 
whose titles unto the rooms of authority which they possess no man can deny to 
be just and lawful : even as contrariwise some men's proceedings in government 
have been very orderly who, notwithstanding, did not attain to be made gov- 
ernors without great violence and disorder) ; such usurpers, therefore, as in the 
exercise of their power do more than they have been authorized to do, cannot in 
conscience bind any man unto obedience." — Eccl. Pol., Bk. VIII., Appendix No. I. 

In the first months of Elizabeth's reign, Aylmer, afterward Bishop of London, 
published an answer to a book by John Knox, against female monarchy, or, as 
he termed it, " Blast of the Trumpet against the Monstrous Regiment of Wo- 
men; " which, though written in the time of Mary, and directed against her, was 
of course not acceptable to her sister. The answerer relies, among other argu- 
ments, on the nature of the English Constitution, which by diminishing the 
power of the crown, renders it less unfit to be worn by a woman. His clear 
conception of the nature of a government of laws is well worthy of notice : 
" Well," he says, " a woman may not reign in England ! Better in England 
than anywhere, as it shall appear to him, that without affection, will consider the 
kind of regiment. While I compare ours with others, as it is in itself, and not 
maimed by usurpation, I can find none either so good or so indifferent. The 
regiment of England is not a mere monarchy, as some, for lack of consideration, 
think, nor a mere oligarchy, nor democracy, but a rule mixed of all these, 
wherein each one of these have, or should have, like authority. The image 
whereof, and not the image, but the thing indeed, is to be seen in the parliament 
house, wherein you shall find these three estates : the king or queen, which rep- 
resented the monarchy; the noblemen, which be the aristocracy ; and the bur- 
gesses and knights, the democracy. If the Parliament use their privileges, the 



HIGH COURT OF STAR CHAMBER. 279 

king can ordain nothing without them ; if he do, it is his fault in usurping it, and 
their fault in permitting it. Wherefore, in my judgment, those that in King Henry 
VIII. 's days would not grant him that his proclamations should have the force 
of a statute, were good fathers of the country, and worthy of commendation in 
defending their liberty. But to what purpose is all this ? To declare that it is 
not in England so dangerous a matter to have a woman ruler as men take it to 
be. For first, it is not she that ruleth, but the laws, the executors whereof be 
her judges appointed by her, her justices, and such other officers. Secondly, she 
maketh no statutes or laws, but the honorable court of Parliament ; she breaketh 
none, but it must be she and they together, or else not. If, on the other part, 
the regiment were such as all hanged on the king's or queen's will, and not 
upon the laws written ; if she might decree and make laws alone without her 
senate ; if she judged offences according to her wisdom, and not by limitation of 
statutes and laws, if she might dispose alone of war and peace ; if, to be short, 
she were a mere monarch, and not a mixed ruler, you might, peradventure, make 
me to fear the matter the more, and the less to defend the cause." — Hallam's 
Constitutional History of England, vol. i. pp. 280, 281. 

4. Blackstone on the open Examination of Witnesses. — " This open examina- 
tion of witnesses viva voce, in the presence of all mankind, is much more condu- 
cive to the clearing up of truth, than the private and secret examination, taken 
down in writing before an officer, or his clerk, or in the ecclesiastical courts, and 
all others that have borrowed their practice from the civil law, where a witness 
may frequently depose that, in private, which he may be ashamed to testify in a 
public and solemn tribunal. There an artful or careless scribe may make a wit- 
ness speak what he never meant, by dressing up his depositions in his own 
forms and language ; but he is here at liberty to correct and explain his mean- 
ing, if misunderstood, which he can never do after a written deposition is taken 
down. Besides, the occasional questions of the judge, the jury, and the counsel, 
propounded to the witnesses on a sudden, will sift out the truth much better 
than a formal set of interrogatories, previously penned and settled ; and the 
confronting of adverse witnesses is also another opportunity of obtaining a clear 
discovery, which can never be had upon any other method of trial. Nor is the 
presence of the judge during the examination a matter of small importance ; 
for, besides the respect and awe with which his presence will naturally inspire 
the witness, he is able, by use and experience, to keep the evidence from wan- 
dering from the point in issue. In short, by this method of examination, and 
this only, the persons who are to decide upon the evidence have an opportunity 
of observing the quality, age, education, understanding, behavior, and inclina- 
tions of the witness ; in which points all persons must appear alike, when their 
depositions are reduced to writing, and read to the judge, in the absence of those 
who made them ; and yet, as much may be frequently collected from the man- 
ner in which the evidence is delivered, as from the matter of it. These are a 
few of the advantages attending this, the English way of giving testimony ore 
tenus." — Blackstone, vol. iii. p. 3*73, 374. 



CHAPTEE YII. 

THE STUARTS. JAMES I. 

CHARACTER OF THE STUART PERIOD — ACCESSION OP JAMES — HIS SPEECH ON OPENING 
HIS PARLIAMENT — DEFINITION OF TYRANNY — THE DOCTRINE OF DIVINE RIGHT 

SEVERITIES AGAINST ROMAN CATHOLICS PARLIAMENT OF 1609 ACT FOR 

COMPELLING OATHS OF ALLEGIANCE — THE COMMONS MAINTAIN THEIR RIGHT 
OF DECIDING ELECTION RETURNS PARLIAMENTARY PRIVILEGE THEIR " APO- 
LOGY " TO THE KING — THEY EXPEL A MEMBER AT HIS DICTATION HIGH 

PREROGATIVE SPEECH OF JAMES TO THE PARLIAMENT IN 1610 — ILLEGAL EX- 
ACTION OF TONNAGE AND POUNDAGE — REMONSTRANCE OF THE COMMONS CASE 

OF DR. COWELL CONSIDERATION OF GRIEVANCES ATTEMPT AT UNION BE- 
TWEEN ENGLAND AND SCOTLAND, AND AT THE ABOLITION OF FEUDAL TENURES 

EXPEDIENTS OF JAMES FOR RAISING MONEY THE UNDERTAKERS' PARLIAMENT 

PARLIAMENT OF 1620-1 JAMES'S SPEECH — DISPUTE OF THE COMMONS WITH 

THE KING ON ADJOURNMENT PARLIAMENT REASSEMBLED THE PROPOSED 

SPANISH MATCH PETITION OF THE COMMONS ANGRY LETTER OF JAMES TO 

THE SPEAKER SECOND PETITION AND REMONSTRANCE OF THE COMMONS 

JAMES'S ANSWER — PROTESTATION OF THE COMMONS — IT IS TORN OUT FROM THE 

RECORD BY THE KING PUNISHMENT OF MEMBERS PARLIAMENT OF 1623 

MONOPOLIES, TOGETHER WITH THE SUSPENDING AND DISPENSING POWERS OF 
THE KING ABOLISHED CONCLUDING OBSERVATIONS. 

We come now to a period in the constitutional history of 
England when all that had been gained for liberty was once more 
to be brought into dispute, and the long controversy between 
prerogative and freedom was to receive its ultimate decision. 
Under the Stuart kings the absolutism that existed in the consti- 
tution girded on its strength, did battle for existence, fell before 
the chartered rights of a brave people resolute to guard them, 
and was blotted out forevermore. The story of this period has 
none of the romance which is connected with the giving of the first 
great charter. Here we see no lordly barons with their retinues 



THE STUARTS. JAMES I. 281 

of belted knights and sturdy yeomen marching in the pomp and 
circumstance of war to win a bloodless triumph from a recreant 
king. Here we have no true English prelate like the archbishop 
Langton standing for a nation's right agaiust a tyrant's usurpation. 
In this strife we have on one side royalty with all its prestige ; on 
the other a plain English House of Commons ; and between, we see 
the church arrayed upon the side of royalty against the people; 
while the peers sustain the commons at the same time that they 
strive to reconcile a quarrel which portends so terrible an end. 
On the surface nothing tells at first of the volcanic fire that 
threatens the existence of the constitution of the kingdom or the 
sovereign's throne. The war — for war it is — seems to be but a 
paper fusillade. The king sends messages to Parliament; adjourns, 
prorogues, dissolves the Parliament ; proclaims the nullity of laws 
passed by the Parliament ; gives orders for the levying of taxes, 
and imprisons freemen without trial, in defiance of the Parliament ; 
all on paper. Parliament, on the other hand, sends back what is 
apparently a shower of paper balls and nothing more. It passes 
resolutions, signs addresses, and remonstrances, and humble parlia- 
mentary petitions, and asserts its rights — on paper. But anon 
the papers glow with passion and men's hearts burn, and the torch 
of civil war lights up the land ; and by and by, as oftenest happens 
in the course of revolutions, people, weary of the strife, give up 
all they have fought for to the hands of a worse tyrant than they 
had before — enduring under a man they call (in mockery is it?) 
Lord Protector of a Commonwealth (!) more grinding and degrading 
despotism than they suffered in the worst days of their be- 
headed king. Yet were the Greeks wise who said, All things are 
born of battle. For by the paper fusillade, no less than the civil 
strife, and the hatred roused against the puritan Lord Destroyer of 
the Kingdom, the atmosphere of English mind was cleared. And 
liberty, at length, defined and guarded by sufficient safeguards, grew, 
as she only can grow, by the aliment of strife and war. He who 
has no imagination would do well to pass over the outwardly dull 
details of parliamentary contention we are now about to lay before 
him. But he who has eyes to see the national life that burns and 
glows, or sometimes only faintly smoulders, under their paper pro- 



282 THE STUARTS. JAMES I. 

tocols and manifestoes, may learn much therefrom not altogether 
useless in this epoch of the history of the United States. We are 
now about to give the parliamentary history of England under the 
Stuart kings, in order to bring clearly out the necessities which 
called for the second and third Great Charters of the liberties of 
England, commonly called the Petition of Right and the Bill of 
Rights. The same necessities may arise again ; many citizens of these 
States think they have occurred already in the past three years. 
Nor are there wanting those who hold that Charles I. never did, 
in all his reign, commit more flagrant outrages upon the English 
constitution and the rights of Englishmen, than have been openly 
and boldly committed on the fourth Great Charter — the incompar- 
able Constitution of the United States, and on free-born Americans 
by a so-called republican (!) administration. Whether these accu- 
sations be true or not, we leave our readers to determine. We 
shall tell the simple tale, neither extenuating nor maliciously 
exaggerating anything whatever. 

James the Sixth of Scotland and First of England, the 
successor of Elizabeth, ascended the throne on the 24th of March, 

1603. He was received with great and hearty welcome by the 
people, who had become tired of their long submission to Elizabeth ; 
and it is probable that the ardent patriots who had sprung up in 
the nation toward the end of her reign looked forward to the 
occupation of the throne by a foreigner, for an opportunity to estab- 
lish the principles of liberty, for which they had contended under 
her repressive system. Yet in the outset of James's reign the most 
extreme flattery — which we have no mind to repeat — was addressed 
to the monarch ; though we must observe that it was always flattery 
of his person, never flattery of his official prerogative. Such as it 
was, it proved acceptable to James ; and nothing could have been 
more promising or more fallacious than the concord which at first 
prevailed between the first king of the House of Stuart and the 
kingdom he had come to govern. The assembling of Parliament 
was delayed on account of the plague which prevailed during the 
year of James's accession, and did not meet before the 19th of March, 

1604. It was opened with a long speech from the king, in which 
he so plainly defined the rights and duties of a constitutional 



THE STUARTS. JAMES I. 283 

sovereign, that his words are quoted by Locke in support of his 
definition of tyranny, which the philosopher describes as " the exercise 
of power beyond riyhV James said, " I will ever prefer the weal of 
the public and of the whole commonwealth, in making of good laws 
and constitutions, to any particular and private ends of mine ; 
thinking ever the wealth and weal of the commonwealth to be my 
greatest weal and worldly felicity — a point wherein a lawful king 
doth directly differ from a tyrant. For I do acknowledge that the 
special and greatest point of difference that is between a rightful 
king and a usurping tyrant, is this : — that whereas the proud and 
ambitious tyrant doth think his kingdom and people are only 
ordained for satisfaction of his desires and unreasonable appetites, 
the righteous and just king doth by the contrary acknowledge 
himself to be ordained for the procuring of the wealth and property 
of the people." It is curious to find such constitutional principles 
laid down at the commencement of the career of the Stuart kings 
— a dynasty to which we owe the monstrous doctrine of divine 
right. This doctrine, which we do not hesitate to stamp as 
monstrous, was thoroughly believed by James and his immediate 
successor, Charles I., and being in fact the platform of their prin- 
ciples, must be clearly understood if we would have an intelligent 
conception of the motives which actuated the Stuarts in their long 
struggle with their subjects. It was current in the reign of James, 
who went so far as to employ his pen to enforce it ; but we may 
collect a more concise account of it, and of the arguments by which 
it was maintained, from a later and more celebrated work, called the 
" Patriarch," written by Sir Robert Filmer in the reign of 
Charles I., and published after the restoration of Charles II. " All 
government (it is asserted) is absolute monarchy. No man is born 
free ; and therefore could never have the liberty to choose either 
governor or form of government. The father of a family governs 
by no law but his own. Kings, in the right of parents, succeed 
to the exercise of supreme jurisdiction. They are above all laws. 
They have a divine right to absolute power ; and are not answer- 
able to human authority." The consequence of these proposi- 
tions was assumed to be " that all laws, privileges, and grants of 
princes have no force but during their lives, if they be not ratified 



284 THE STUAETS. JAMES I. 

by the express consent or the sufferance or the prince following ; 
and that a perfect kingdom is that where the king rules all things 
according to his own will." This doctrine was preached by the 
Church and acted upon by the Stuart kings. 

This Parliament was chiefly occupied with passing and restor- 
ing penal laws against the Roman Catholics. Its most important 
acts will be described hereafter. The second session of Parliament 
commenced on the 5th of November, 1605, the day after the dis- 
covery of the Gunpowder Plot ; and the act which was immediately 
passed for establishing an annual public thanksgiving for the deliv- 
erance of the king, was used as an occasion for more of that fulsome 
and even blasphemous adulation which had been addressed to him 
at the beginning of his reign. This Parliament was chiefly noted 
for severities against the Roman Catholics. 

The Parliament held in 1609 continued the same course of 
severity against the papists (i. e., to enforce the established religion 
upon them). It passed an act that no person should be naturalized, 
or restored in blood (in other words, relieved from the penalties of 
attainder), unless he received the sacrament before the bill was 
exhibited, and took the oath of allegiance and supremacy before it 
was read a second time. 

An act of the same session, 1609, shows the willing concurrence 
of Parliament in severe laws. It was " for administering the oath 
of allegiance, and reformation of married women recusants." "To 
show how greatly your loyal subjects approve the oath, they pros- 
trate themselves at your majesty's feet, that the oath may be admin- 
istered to all your subjects." It required the oath to be taken by all 
persons, ecclesiastical and temporal, of both sexes, above the age 
of eighteen years. Numerous clauses describe the officials before 
whom the several orders and ranks in the state — the church, the 
law, the army and navy, members of the universities and of Parlia- 
ment, doctors of physic, aldermen, and freemen — should take the 
oath, which was to be taken by all within six months. Any of the 
privy council, or a bishop, might require any baron or baroness 
above the age of eighteen — and two justices of the peace might 
require any other person above the same age — to take the oath. 

If refused 3 the person tendering the oath was to commit the 



THE STUARTS. JAMES I. 285 

offender to the common jail, there to remain without bail, until the 
next assizes, or quarter sessions ; where if the oath were again 
refused, the person refusing incurred the penalties of praemunire ; 
except married women, who were to be imprisoned without bail, 
until they would take the oath. Persons refusing the oath were 
disabled to hold any public place of judicature, to bear any office, 
or to practise the common law, or civil law, or physic, or surgery, 
or the art of an apothecary, or any liberal science for gain, until 
they should receive the oath. 

But ere long a change became apparent in the actions of the 
Commons. James — " the wisest fool in Christendom " — was little 
likely to sustain the reverence inspired by his position. He was a 
striking contrast to his predecessor ; and the House of Commons, 
relieved from the dread with which Elizabeth had inspired them, 
soon gave James to understand that he must not expect submission 
to his absolute will where their privileges were concerned. These 
they brought forward, and enforced with an energy and spirit, in 
striking contrast with the humble language of their statutes. In 
the first Parliament they entered into a contest, in which the king 
took personal part, as to their right to decide upon election returns. 
The king having assumed a right to limit the selection of the 
people in regard to the persons whom they might return as mem- 
bers of the House of Commons, and in the Court of Chancery to set 
aside elections not made in accordance with his proclamation, the 
house made so determined a resistance to this manifest invasion 
of its privilege, that James was glad to end the matter by a com- 
promise which left the house substantially victorious ; and from 
this time forward no attempt ever was made to dispute their juris- 
diction over the returns of their members. 

In the same Parliament they established (not without a struggle) 
their privilege to deliver out of custody members arrested in execu- 
tion for debt, and to punish those who made or procured such arrest ; 
which privilege was put into an indisputable position by an act of 
the same Parliament. 

Besides these successes, the House of Commons of James's first 
Parliament laid a strong foundation for the future efforts by a 
bold and explicit statement of their constitutional rights and liber- 



286 THE STUARTS. JAMES I. 

ties, which, they caused to he drawn up by a committee of the house, 
in order to be delivered to the king. It is entitled " A Form of 
Apology and Satisfaction to be delivered to his Majesty ; " and must 
ever be considered as an important constitutional document. It is 
addressed to the kiDg, and it commences by expressing a desire to 
remove from the mind of the king (whom they style " a king of 
such understanding and wisdom as is rare to find in any prince in 
the world") misinformation touching the estate of the House of the 
Commons, as to the privileges of the commons, and their several 
proceedings during this Parliament. They reduce these misinfor- 
mations to three principal heads. " 1st, Touching the cause of the 
joyful receiving of your majesty into the kingdom; — 2dly, Touch- 
ing the rights and liberties of your subjects of England, and the 
privileges of this house ; — 3dly, Touching the several actions and 
speeches passed in the house." 

They " declare, as to the first, that they received him not with 
fear, but with joy and cheerfulness, and with a general hope that, 
under his reign, peace, justice, and all virtue, should renew again and 
flourish. Touching the privileges (the second) the misinformation 
delivered was — 1st, That we hold not privileges of right, but of 
grace only, renewed every Parliament, by way of donation, upon 
petition, and so to be limited ; 2dly, That we are no court of rec- 
ord, nor yefc a court that can command view of records, but that 
our proceedings here are only to acts and memorials, and that the 
attendance with the records is courtesy, not duty ; odly, and lastly, 
That the examination of the return of writs for knights and bur- 
gesses is without our compass, and due to the chancery. 

" They, in the name of the whole commons of England, and for 
themselves and their posterity, protest against these assertions, and 
desire that their protestation may be recorded to all posterity. 
And contrariwise, against these misinformations they most truly 
avouch : 

" 1st. That our privileges are our rights and due inheritance, no 
less than our lands and goods. 

" 2dly. That they cannot be withheld from us, denied, or im- 
paired, but with apparent wrong to the whole state of the realm. 

" 3dly. That our making of request, in the entrance of Parlia- 



THE STUARTS. JAMES I. 28V 

ment, to enjoy our privilege, is an act only of manners, and doth 
weaken our right no more than our suing to the king for our lands 
by petition, which form, though new and more decent than the old 
by praecipe, yet the subject's right is no less now than of old. 

" 4thly. We avouch also, that our house is a court of record, and 
so ever esteemed. 

" 5thly. That there is not the highest standing court in the land 
that ought to enter into competency, either for dignity or authority, 
with this high Court of Parliament; which, with your Majesty's 
royal assent, gives laws to other courts, but from other courts, 
receives neither laws nor orders. 

" 6thly and lastly. We avouch that the House of Commons is 
the sole proper judge of return of all such writs, and of the elec- 
tion of all such members as belong to it — without which the free- 
dom of election were not entire ; and that the chancery, though a 
standing court under your majesty, be to send out these writs and 
receive the returns, and to preserve them, yet the same is done 
only for the use of Parliament; over which neither the chancery, 
nor any other court ever had, or ought to have, any manner of 
jurisdiction." 

The strain of such high principles, in a body which had addressed 
so much fulsome flattery to James, in the first acts of the Parlia- 
ment, may be conceived ; and in the session of 1606 the Commons 
receded so far as to expel a member at the king's dictation. The 
circumstances were as follows : Sir Christopher Pigott, having 
introduced into a speech some by-matters of invectives against the 
Scotch and the Scottish nation, the house was so amazed at the 
speech that they took no notice of it at the time, nor until three 
days afterward, when they received a message from the king saying, 
" how much he did mislike and tax the neglect of the house, in that 
the speech had not been interrupted in the instant, and the party 
committed before it became public, and came to his higlmess's ear." 

The house sent the sergeant-at-arms for the offender : but after 
all, they said, they knew not what way to censure him for it ; for 
freedom of speech in their house was a darling privilege. But it 
was resolved to expel him ; and on his knees he received from the 
speaker the judgment of the house, committing him to the Tower 



288 THE STUARTS. JAMES I. 

during the pleasure of the house, and dismissing him from his place 
as knight of the shire. 

Nevertheless the growing boldness of the Commons required 
from the king a counter assertion of his authority and principles 
of government, and, in a speech with which he opened the sessions 
of Parliament of 1610, he declared these in the highest strain of 
divine right. The contest, now commenced between prerogative 
and Parliament, was, in this reign, carried on by speeches, or state 
papers — the protocols, as it were, which preceded the declaration 
of actual war — and it is in these we must look for the pretensions 
and demands of the contending parties. From the long and 
pedantic speeches of James, a few extracts will show his view of 
his royal prerogative and position. " The state of monarchy is the 
supremest thing upon earth ; for kings are not only God's lieuten- 
ants, and sit upon God's throne, but, even by God himself, they 
are called gods. Kings have like power with God : they make and 
unmake their subjects ; they have power of raising and casting down ; 
of life and death ; are judges over all their subjects, and in all 
causes, and yet accountable to God alone." He admits that " a king 
is bound to protect his people, and to govern them according to 
his laws ; and therefore a king governing in a settled kingdom, 
leaves to be a king, and degenerates into a tyrant, as soon as he 
leaves off to rule according to his laws ; . . . and they that per- 
suade them to the contrary are vipers and pests, both against them 
and the commonwealth ; yet their punishment is with God, and no 
Christian man ought to allow any rebellion of people against the 
prince." He concludes with this climax of divine right : " That 
as to dispute what God may do is blasphemy, so is it sedition in 
subjects to dispute what a king might do in the height of his 
power ; but just kings will ever be willing to declare what they 
will do, if they will not incur the curse of God. I will not be con- 
tent that my power be disputed upon ; but I shall ever be willing 
to make the reason appear of all my doings, and rule my actions 
according to my laws." 

These high pretensions did not intimidate the Commons, who, 
in this session, called in question a proceeding of the king's in 
relation to the custom of tonnage and poundage. An act of his 



THE STUAETS. JAMES I. 289 

first Parliament granted to James the subsidy of tonnage and 
poundage for his life ; but afterwards, by his own sole authority, 
he increased the duty on currants from two shillings and sixpence 
to five shillings per hundred weight. This being an imposition 
without the consent of Parliament, Bates, a Turkey merchant, 
refused payment, and he was prosecuted by the crown. The 
Court of Exchequer, subservient to the crown, had justified the 
imposition on the principle of the divine right of kings, and their 
superiority to all laws which they had not concurred in enacting. 
In the session of 1610, the Commons, although forbidden by the 
king, remonstrated against the imposition, and excused themselves 
from compliance with his command not to enter upon the matter, 
by declaring that they claimed it " as an ancient, general, and 
undoubted right of Parliament to debate freely all matters which 
do properly concern the subject, which freedom of debate being 
once foreclosed, the essence of the liberty of Parliament is withal 
dissolved." And as to the imposition and judgment in the exche- 
quer, after premising " that the policy and constitution of the 
kingdom appropriates unto the kings, with the assent of Parlia- 
ment, as well the sovereign power of making laws, as that of taxing, 
or imposing upon the subjects' goods or merchandises, as may not, 
without their consents, be altered or changed ; " they say that 
" finding that your majesty, without advice or consent of Parlia- 
ment, hath lately, in time of peace, set both greater impositions, 
and far more in number, than any your noble ancestors did ever in 
time of war — have, with all humility, presumed to present this 
most just and necessary petition to your majesty, that all imposi- 
tions set without the assent of Parliament, may be quite abolished 
and taken away ; and that your majesty, in imitation likewise of 
your noble progenitors, will be pleased that a law be made during 
this session of Parliament, to declare that all impositions set, or 
to be set upon your people, their goods and merchandises, save 
only by common consent in Parliament, are and shall be void." 
The Commons followed up their protest with a bill abolishing im- 
positions ; but it was thrown out of the upper house. 

The king's high notions of prerogative found a supporter in 
Dr. Cowell. a clergyman, who published a book called " The In- 
13 



290 THE STUAETS. JAMES I. 

terpreter," dedicated to Archbishop Bancroft. It was rumored 
that the king had spoken favorably of the book, and the indigna- 
tion of the Commons was roused. It must be admitted that the 
royal prerogative was asserted in an extravagant form. The 
author's principles were these : 1st. That the king was solutus 
a legibus and not bound by his coronation oath. 2d. That it 
was not ex necessitate that the king should call a Parliament to 
make laws, but he might do it by his absolute power ; for voluntas 
regis was lex populi. 3d. That it was a favor to admit the con- 
sent of his subjects in giving of subsidies. The Commons sent a 
message to the Lords that they had noticed Cowell's book ; which, 
as they conceived contained matters of scandal and offence towards 
the high Court of Parliament, and was otherwise of dangerous 
consequence and example. Conferences were held between the Lords 
and Commons, and the king called the author before him, and 
heard his defence of his doctrines. He afterwards transmitted his 
judgment to the Lords to be communicated to the Commons ; but 
it never was communicated, and the matter dropped, the Commons 
probably thinking that their remonstrance was sufficient. 

The Commons in the same Parliament, when asked for a sub- 
sidy, gave priority to their grievances in ecclesiastical and temporal 
concerns. They complained of the high commission court, and of its 
proceeding to fine and imprisonment, powers beyond its jurisdiction. 
They disputed the king's power to make or alter laws hy proclama- 
tions : they said that there was nothing more precious than to be 
governed by the certain rule of law, and not by any uncertain or 
arbitrary form of government. . . ." They asserted " the indubit- 
able right of the people of this kingdom not to be made subject 
to any punishment that should extend to their lives, lands, bodies, 
or goods, other than such as were ordained by the common laws 
of this land, or the statutes made by their common consents in 
Parliament ; and they pointed out that proclamations had of late 
years been more frequent, extending not only to the liberty and 
property of men, but altering the old laws and making new — even 
when the latter had been rejected in the same session of Parlia- 
ment, and imposing penalties and punishments, so that a general 
fear was conceived and spread amongst the people, that proclama- 



THE STUARTS. JAMES I. 291 

tions could by degrees grow up and increase to the strength and 
nature of laws." 

Two great measures — which, however, were not carried out in 
this reigu — occupied much of the attention of this Parliament. 
The first was the union of England and Scotland as one nation 
under the same Parliament and government, which the king was 
extremely anxious to bring about ; expressing his desire that as 
there was unus rex, so there might be unus grex, and una lex, one 
king, one country, one law. In this, however, he was not cordial- 
ly met by Parliament. The other measure was the abolition of 
the feudal revenues of the crown, which the Commons desired, and 
for which they were willing that the king should receive an ade- 
quate compensation This affair acquired the name of the great 
contract between the king and people. James sent a message to 
the Lords, offering to accept a commutation of £200,000 yearly. 
The Commons, after contending for £180,000, at length came up to 
the price demanded ; but while the Lords were striving to carry 
through the contract on the part of the king, the Commons sudden- 
ly changed their minds, from a feeling, it is supposed, that they 
could have no security for the performance of the arrangement, 
from the laxity of the prevailing doctrines of divine right. The 
king was displeased, and dissolved the Parliament, with no good 
humor on either side. 

The failure of the great contract, and the dissolution of 
Parliament without the grant of a supply, left James in great 
embarrassment. He was not involved in war, but the supply of 
his court and favorites required large sums of money. Its effect 
upon the people is described as beneficial. " Freedom from war 
made riches flow ; no taxes anyways burdensome — the grant of 
subsidies during this king's reign being but a poor pittance com- 
pared with those of Elizabeth. How he kept up his estate and 
expense of court is a secret." Various devices were adopted to 
raise money for the royal treasury. A new order of dignity — that 
of baronets — was invented, for patents to which a fee of £1,000 
was paid. The current value of the gold coin was raised ; and a 
lottery, the first drawn in England, was instituted. 

These resources proving insufficient, and the king's necessity 



292 THE STUARTS. JAMES I. 

being great, he was induced again to try the effect of a, Parliament. 
He was strongly urged to do so by Sir Francis Bacon, who, 
seconded by others of the king's ministers and courtiers, under- 
took to assemble such a House of Commons, and so to manage 
it when assembled, as that it should be subservient to the king's 
wishes. These therefore got the name of undertakers. 

The Parliament met on the 5th of April, 1614, but the scheme 
was eminently unsuccessful. The Commons passed a unanimous 
vote against the king's right of imposing taxes without the consent 
of Parliament ; and they desired a conference with the Lords 
touching the point of impositions. The Lords desired the opinions 
of the judges on the subject, in order to regulate their answer to 
the Commons : but the judges, headed by Sir Edward (Lord) Coke, 
declined to give an opinion, on the ground that the question might 
come before them judicially ; and the Lords, unable to settle a satis- 
factory answer, sent a message to the Commons declining the con- 
ference. The Commons thereupon declared that they considered 
a great wrong had been done to them, which they had so taken to 
heart that they had determined to forbear all parliamentary mat- 
ter, until they might receive a different answer from the Lords. 
This threat was directed against a bill of supply, which the king's 
secretary had introduced into the lower house. The Lords, to 
whom the king had sent a commission to dissolve, gave the Com- 
mons time to reconsider their resolution ; but on the 7th of June, 
there being no change, the Parliament was dissolved. Not a single 
bill was passed in this Parliament. 

Six years elapsed before another Parliament was called ; and 
during that time the king and his ministers supported the court 
and state from the ordinary resources, or by such loans and benev- 
olences as they could procure. This period is described as the 
" halcyon days in England, no taxes being now paid, trade open 
to all parts of the world, a profound peace reigning everywhere ; " 
but in 1620, this quietude was disturbed by a war which broke out 
in G-ermany, by which Frederic, Count Palatine of the Rhine, who 
had married the king's daughter, the princess of England, was 
dispossessed of all his hereditary dominions. James's pacific tem- 
per was roused to revenge his son in law, and to recover his terri- 



THE STUARTS. JAMES I. 293 

tories : and the inclination of the people being in favor of the 
support of the Protestant interest in Germany, he ventured to call 
a Parliament. 

It met on the 30th of January, 1620-'l, and was opened by a 
rather lugubrious speech from the king, in which he humbled him- 
self in a manner inconsistent with high prerogative principles. 
He said to them, " I have often piped to you, but you have not 
danced ; I have often mourned, but you have not lamented." 
He asks, " Why are you called ? " and replies, " To advise the 
king in his urgent affairs ; to give him your best advice in such 
errands as he shall ask of you, or you shall think fit to ask his 
advice in." To the House of Commons he said, " You are the 
authors of sustenance to the king, to supply his necessities, and 
this is the proper use of Parliaments." " The main errand, to 
speak the truth, which I have called you for, is for a supply of 
my urgent necessities." He reminds them of the eighteen years 
of peace they had enjoyed, " and yet, with these eighteen years, I 
have had less supplies than many kings before. The last queen 
had what came, by computation, to £135,000 a year at least. I 
had never above four subsidies and six fifteenths." He told them 
that " bis dat qui cito dat ; " that in his first Parliament he was 
led by the old counsellors he found, which the old queen had left ; 
and in the last Parliament there came up a strange kind of beasts 
called undertakers, a name which in his nature he abhorred, and 
which had caused a dissolution. 

Mr. Secretary Calvert put the house in mind of what the Par- 
liament was principally called for ; and it was agreed that the 
occasion was more pressing than any since the recovery of the Holy 
Land. But the Commons were in no hurry to supply the king's 
necessities, and Sir Edward Coke moved for a committee of the 
whole for grievances ; sarcastically saying, that " the remedying 
of them wouid encourage the house and enable them to increase 
the supply." The committee was appointed, and the supply was 
deferred ; but the Commons, who were favorable to the recovery 
of the Palatinate, and had assented to a resolution encouraging 
the king to attempt it, passed a subsidy bill, and received the thanks 
of the king for their cheerfulness in passing it. 



294 THE STUARTS. JAMES I. 

Parliament had sat several months, and many bills had been in- 
troduced, but none had been brought to a conclusion, when the 
House of Commons incurred the displeasure of James. On the 
28th of May the lord treasurer announced that the king intended 
to adjourn the Parliament, and to adjourn rather than prorogue : 
and the judges, on being consulted, announced their opinion that 
the effect of an adjournment by royal commission was to reserve 
all bills not passed, in the same state, until their next meeting. 
The Commons urged the Lords to join them in a petition to prevent 
the adjournment, and in a conference expressed " their grief and 
passion that they could not perform what they had promised for 
the good of the commonwealth." But the king was not to be 
moved from his determination. He attended the House of Lords 
to adjourn the Parliament, affirmed that if the Commons had 
behaved with humility, he would have granted them ten days 
longer, but that now he would not yield to their requests. Yet, if 
the Lords thought ten days more would be of advantage, he would 
grant it to them. The Lords thereupon had a conference with the 
Commons, but the latter indignantly refused to ask for further ad- 
journment. 

On the reassembling of Parliament, on the 20th of November 
following, a session commenced, in which the struggle between the 
king and Commons reached its climax. After a speech by the 
lord keeper Williams, the lord treasurer urged the king's wants ; 
declared that the two subsidies which had been granted by the 
Parliament had been spent about the Palatinate ; promised that 
future supplies should be wholly employed for the recovery of the 
Palatinate ; and ended by expressing a wish " that the Commons 
would so handle this business as to make his majesty in love with 
parliaments." 

The Commons were in no haste to grant supplies, but went upon 
the old topic of grievances. The principal of these was the danger 
to the established religion which they apprehended from the in- 
tended match between Prince Charles and the Infanta of Spain, 
then publicly talked about. They drew up a petition, to be pre- 
sented to the king, in which they pointed out the evils which, they 
believed, would fall on the nation from the Spanish match. The 



THE STUARTS. JAMES I. 



295 



king, having received a copy of the petition before the Commons 
had time to present it in form, was so displeased, that he sent a 
letter to the speaker, forbidding it to be sent to him. He said, in 
his letter, that he had heard by reports, that some fiery and pop- 
ular spirits of the House of Commons had argued and debated 
publicly, of matters far above their reach and capacity, tending to 
his high dishonor, and breach of prerogative royal. He command- 
ed that " none should presume to meddle with anything concerning 
his government or deep matters of state ; " adding that " we think 
ourself very free and able to punish any man's misdemeanor in 
Parliament, as well during the sitting, as after, upon any occasion 
of any man's insolent behavior that shall be ministered unto us." 

The Commons despatched messengers to bring back the mem- 
bers whom they had sent to deliver the remonstrance, and they 
drew up a second petition or remonstrance, which they sent along 
with the former by twelve of their members. The latter opens 
with the expression by the Commons, of loyal and submissive feel- 
ings toward the king, and proceeds to justify their having taken 
into consideration (being invited to do so by the king) both the 
war abroad and the security of our peace at home. They did not, 
they said, assume to encroach or intrude upon the sacred bounds 
of the royal authority, " to whom, and to whom only, it belonged 
to resolve of peace or war, and of the marriage of the prince his 
son. But as his humble subjects, representing the whole commons 
of the kingdom, they resolved, out of their cares and fears, to de- 
monstrate these things to his majesty ; and that without expecta- 
tion of any answer than what at his good pleasure and in his own 
time should be held fit." They besought him to receive their for- 
mer declaration, and added, " But whereas your majesty, by the 
general words of your letter, seems to restrain us from intermed- 
dling with matters of government, in particulars which have their 
motion in courts of justice — the generality of which words might 
involve those things which are the proper subjects of parliamentary 
occasions and discourse — and whereas your majesty doth seem to 
abridge us of the ancient liberty of Parliament, for freedom of 
speech, jurisdiction, and just censure of the house, and other pro- 
ceedings there — .... the same being our ancient and undoubt- 



296 THE STUARTS. JAMES I. 

ed right, received from our ancestors, without which we cannot 
freely debate, nor clearly discourse of things in question before us, 
nor truly inform your majesty, .... — we are, therefore, now 
again enforced, in all humbleness, to pray your majesty to allow 
the same." 

The king sent the Commons a written answer on the 1 lth of De- 
cember, 1621, drawn up in his usual scholastic style, and often 
treating the positions of the Commons sarcastically and contemptu- 
ously. Referring to their request to him not to trust reports 
against them, he said, " We wish you to remember that we are an 
old and experienced king, needing no such lessons ; being in our 
conscience, freest of any king alive, from hearing or trusting idle re- 
ports ; which many in your house could bear witness, if ye would 
give as good ear to them as you do to some tribunitial orators 
among you. ... In your petition you usurp upon our preroga- 
tive royal, and meddle with things far above your reach ; and then, 
in a conclusion, you protest the contrary ; as if a robber would take 
a man's purse, and then protest he meant not to rob him. For 
first you presume to give us your advice concerning the match of 
our dearest son with some Protestant (we cannot say prineess, for 
we know of none of these fit for him), and dissuade him from his 
match with Spain, urging us to a war with that king ; and yet, in 
the conclusion, forsooth, ye protest ye intend not to press upon 
our most undoubted and royal prerogative." 

Adverting to their excuse of not determining anything concern- 
ing the match, but only to tell their opinion, and lay it at his 
feet, he desired to know " how ye could have presumed to deter- 
mine on that point, without committing high treason." And as to 
the receiving of their former petition, he justly rejected that suit ; 
" for what have you left unattempted in the highest points of sov- 
ereignty in that petition of yours, except the striking of coin ? 
For it contains the violation of leagues, the particular way how to 
govern a war, and the marriage of our dearest son. These are un- 
fit things to be handled by Parliament, except your king should 
require it of you. For who could have wisdom to judge of things 
of this nature, but such as are daily acquainted with the particu- 
lars of treaties, and of the variable and fixed connection of affairs 



THE STUARTS. JAMES I. 297 

of state, together with the knowledge of the secret ways, ends, and 
intentions of princes in their several negotiations ? Otherwise, a 
small mistake of matters of this nature may produce more effects 
than can be imagined. And, therefore, ne sutor ultra crcjoidam. 
And besides, the intermeddling of Parliament with peace or war, 
and the marriage of our dearest son, would be such a diminution 
to us and our crown in foreign countries, as would make any 
prince neglect to treat with us, except they might be assured by 
the assent of Parliament. We cannot omit to show you how 
strange we think it, that you think we meant to restrain you of 
your ancient privileges in Parliament. Although we cannot allow 
of the style calling it your ancient and undoubted right of inheritance, 
but could rather have wished that ye had said that your privileges 
were derived from the grace and permission of our ancestors (for 
most of them grew from precedents, which shows rather a tolera- 
tion than an inheritance), yet we are pleased to give our royal as- 
surance that, so long as you contain yourselves within the limits 
of your duty, we will be as careful to maintain your lawful liber- 
ties and privileges as ever any of our predecessors were ; nay, as to 
preserve our own royal prerogative." 

The Commons met the king's answer (which even the lord 
keeper considered so harsh that he wished it to be mitigated) by 
giving over all business ; and foreseeing that the king, despairing 
of supply, would dissolve the Parliament, they resolved to place on 
record a declaration of their privileges. They, therefore, drew up 
a bold and comprehensive protestation, in vindication of their 
privileges, which was recorded in the journals of the house on the 
18th of December. On the same day the prince, by virtue of a 
commission from the king, adjourned the Parliament to the 8th 
of February following. This great constitutional protestation is as 
follows : 

" The Commons now assembled in Parliament, being justly oc- 
casioned thereunto concerning sundry liberties, franchises, privi- 
leges, and jurisdictions of Parliament, do make this protestation 
following : That the liberties, franchises, privileges, and jurisdic- 
tions of Parliament, are the ancient and undoubted birthright and 
inheritance of the subjects of England, and that the arduous and 
. 13* 



298 THE STUARTS. JAMES I. 

urgent affairs concerning the king, state, and the defence of the 
realm and of the Church of England, and the maintenance and 
making of laws, and redress of mischiefs and grievances which 
daily happen within the realm, are proper subjects and matter of 
counsel and debate in Parliament ; and that, in the handling and 
proceeding of those businesses, every member of the house of Par- 
liament hath, and of right ought to have, freedom of speech, to 
propound, treat, reason, and bring to conclusion the same ; and 
that the commons in Parliament have like liberty and freedom to 
treat of those matters, . in such order as in their judgment shall 
seem fittest ; and that every member of the said house have like 
freedom from all impeachment, imprisonment, and molestation 
(other than by the censure of the house itself), for or concerning 
any speaking, reasoning, or declaring any matter or matters, touch- 
ing the Parliament or Parliament business ; and that if any of the 
said members be complained of, and questioned, for anything done 
or said in Parliament, the same is to be showed to the king, by the 
advice and assent of all the commons assembled in Parliament, be- 
fore the king give credence to any private information." 

The king sent for the journals, and he " rent out the protesta- 
tion with his own hand ; " and afterwards published a declaration, 
declaring it invalid, annulled, void, and of no effect. In a subse- 
quent proclamation he reviewed the proceedings of the Parliament, 
and attributed its failure to " some ill-tempered spirits, who by 
their cunning diversions had imposed on him the necessity of dis- 
continuing it." But he stated his intention to govern his people 
in the same manner as his predecessors ; and in due time to call 
another Parliament. The " ill-tempered spirits " to whom the king 
referred, were soon made known, by the steps taken to punish 
them. Some were committed to the Tower ; some were impris- 
oned or confined ; some, by a sort of honorable banishment, were 
sent to Ireland as commissioners, under a royal commission, to in- 
quire into sundry matters for his majesty's service ; and a few 
were raised to the peerage. 

A new Parliament met on the 19th of February, 1623. The 
first period of its sitting was occupied chiefly with the treaties with 
Spain touching the proposed match of the Prince with the Infanta, 



THE STUARTS. JAMES I. 299 

which was speedily broken off. The} T , moreover, sanctioned the 
king's entering into a war for the recovery of the Palatinate, for 
which they granted the largest aid ever given by Parliament — 
three entire subsidies and three fifteenths — stipulating only for a 
commission to see that the money was appropriated according to 
the purpose of Parliament. 

But the great subjects which occupied the attentiou of this Par- 
liament, were the grants of monopolies, and the power of dispens- 
ing with penal laws and forfeitures exercised by the crown. In 
the time of Elizabeth, Parliament had remonstrated against the 
injury done by monopolies to trade and manufactures ; but in this 
reign they were still continued to a great extent. The crown now 
also assumed as its prerogative a power, called the dispensing power, 
to dispense with the action of laws ; and by this prerogative it ex- 
empted favored individuals from the operation of penal laws, and 
from the forfeitures which a breach of them demanded. By an- 
other nearly similar prerogative, called the suspending power, it 
made royal grants to favored individuals, contrary to the terms of 
existing statutes, by inserting in the grants or letters patent a non 
olstante clause — i. e., notwithstanding the particular statute which 
the grants contravened. It also made to its friends and courtiers 
grants of fines and penalties, which had accrued, or were expected 
to accrue to the crown, from persons convicted, or expected to be 
convicted under penal statutes ; and of the profits to be derived 
from escheats. 

No prerogatives could be more unjust or more injurious than 
these ; and they were effectually ended by an act of this Parlia- 
ment. Its title is, " An Act concerning Monopolies, and Dispensa- 
tions with Penal Laws and the Forfeitures thereof." In its pream- 
ble it refers, as the foundation of its enactments, " to a royal judg- 
ment which King James did, in 1610, publish in print to the whole 
realm, and to all posterity, that all grants of monopolies, and of the 
benefit of penal laws, or of power to dispense with the law, or to 
compound for the forfeiture, were contrary to the laws ; — which 
royal declaration was truly consonant and agreeable to the ancient 
and fundamental laws of the realm." 

It, therefore, declared that all monopolies, commissions, grants, 



300 THE STUARTS. JAMES I. 

licenses, charters, and letters patent for the sole buying, selling, 
making, working, or using anything within the realm, or of any 
other monopolies ; or of power, liberty, or faculty to dispense with 
any others ; or to give license or toleration to do, use, or exercise 
anything against the tenor or purport of any law or statute ; or to 
give or make warrant for any such dispensation, license, or toleration 
to be had and made ; or to agree or compound with any others for 
any penalty or forfeitures limited by any statute ; or of any grant 
or promise of the benefit, profit, or commodity of any forfeiture, 
penalty, or sum of money that was or should be due by any stat- 
ute, before judgment thereupon had ; and all proclamations, inhi- 
bitions, restraints, warrants of assistance, and all matters and things 
whatsoever, any way tending to the strengthening, furthering, or 
countenancing of the same or any of them — were altogether con- 
trary to the laws of the realm, and so were, and should be, utterly 
void, and in no wise be put in use or executed. 

This declaration of the law is enforced by provisions for making 
monopolies impracticable ; and one provision saves from the opera- 
tion of the act, and declares that it " shall not extend to letters 
patent and grants of privilege for the term of fourteen years and 
under, thereafter to be made, of the sole working or making of any 
manner of new manufactures within this realm, to the true and first 
inventor or inventors of such manufactures, which others, at the 
time of making such letters patent and grants, shall not use." It 
is under this exception from the act, that the British crown has ex- 
ercised, and now exercises, the right of granting letters patent for 
new inventions. 

With this great act of Parliament we leave the reign of James. 
The pretensions of prerogative were now clearly understood, and 
had been manfully resisted. The seeds of civil discord had been 
sown ; and in the following reign of the unfortunate and misguided 
Charles, a harvest of contention was to be gathered, to be followed, 
at a later and a better time, by liberty and peace. In their disputes 
with James, no lover of the people will admit that Parliament 
made one false or imprudent step. They were in all their acts 
calm, and, though firm, conciliatory and respectful. In religion, it 
is true, they were not yet advanced to our opinions in regard to 



. THE STUARTS. JAMES I. 301 

toleration. But as yet, at least, they had not fallen into the hands 
of Puritanism. In the next reign we shall perceive how they 
preserved the same course of consistent and conservative determi- 
nation to preserve their rights, and how they had already won the 
amplest guarantees of every right they had asserted, when the 
pestilent viper of Puritanism, whose clamorous love for freedom is 
but a devilish, hypocritical mask, assumed to hide its lust of dom- 
ination, carried on its agitations, till it overthrew the constitution 
of the kingdom and set up the gentle rule of Cromwell. 



CHAPTEE VIII. 

THE STUARTS CONTINUED.— CHARLES I.— FIRST THREE PARLIA- 
MENTS TO THE PETITION OF RIGHT. 

INTRODUCTORY OBSERVATIONS — FIRST PARLIAMENT — CHARLES'S SPEECH — TONNAGE 
AND POUNDAGE GRANTED FOR ONE TEAR BY THE COMMONS ILLEGAL COLLEC- 
TIONS OF THEM BY CHARLES HATRED AGAINST BUCKINGHAM — DISSOLUTION OF 

PARLIAMENT EXACTIONS AND FORCED LOANS — SECOND PARLIAMENT HAUGH- 
TINESS OF CHARLES — PREPARATION OF THE COMMONS TO IMPEACH BUCKINGHAM 

COMMONS PASS SUPPLY BILLS TO BE GRANTED WHEN GRIEVANCES HAVE BEEN 

HEARD UNCONDITIONAL SUPPLY DEMANDED COMMONS' REMONSTRANCES 

IMPEACHMENT OF BUCKINGHAM IMPRISONMENT OF DIGGS AND ELLIOT 

ABRUPT DISSOLUTION OF PARLIAMENT — RENEWED EXACTIONS AND IMPRISON- 
MENTS — EXPEDITION TO ROCHELLE THIRD PARLIAMENT UNCONCILIATORY 

SPEECH OF CHARLES COMPLAINT OF GRIEVANCES SIR PETER HAYMAN RESO- 

% LUTIONS OF THE COMMONS ADDRESS TO THE KING! THE PETITION OF RIGHT 

FIRST AGITATED — CHARLES ENDEAVORS TO PREVENT DISCUSSION, OFFERING 

HIS ROYAL PROMISE TO MAINTAIN THE CHARTERS PERMISSION FOR A BILL 

GIVEN SPEECHES OF ELLIOT AND COKE CONFERENCE WITH THE LORDS 

THEIR PROPOSITION OUTLINE OF THE PETITION OHARLES'S AMBIGUOUS ASSENT 

CLERICAL POLITICS— DR. MAINWARING — CHARLES FORBIDS CENSURE OF 

MINISTERS EXCITEMENT IN THE HOUSE EXPLANATORY MESSAGE FROM THE 

KING REGULAR AND FINAL PASSAGE OF THE PETITION OF RIGHT JOY OF 

THE PEOPLE. 

Charles I. ascended the throne on the 27th of March, 1625. 
His reign is, perhaps, the most exciting in the constitutional history 
of England : in it the great contest between prerogative and free- 
dom was brought to decision by the ultima ratio of war, followed 
by the execution of the king. These events long divided the na- 
tion into two parties ; one of which deprecated the war as a great 
rebellion, and the execution of the king as sacrilegious parricide : 
while the other justified the war, as a national and just resistance 



THE STUARTS. CHARLES I. 303 

of arbitrary and illegal power ; and the king's execution as the 
lawful punishment of a tyrant. 

It is not necessary to our purpose to follow the course of that 
memorable history through the civil war ; but the contest between 
Charles and his parliaments, prior to the civil war, abounds with 
events and circumstances that must not be overlooked. The com- 
mons then asserted and maintained principles of constitutional free- 
dom with indefatigable perseverance and boldness ; and transmitted 
them to posterity as privileges of Parliament, or in general statutes. 
Of the latter, the most important is that known as the Petition of 
Right ; a laudmark of the Constitution, inferior only in importance 
to Magna Charta and the Confirmatio Chartarum of Edward I. 
It was the constitutional result of the first three parliaments of 
Charles; but unlike its great predecessors which were the work of 
the barons, this proceeded from the commons. 

The characteristic feature of Charles's reign, in the relation be- 
tween him and his first three parliaments, was, on his part, a con- 
stant endeavor to obtain supplies without diminishing the absolute- 
ness of his prerogative ; on their part, to make the supplies the 
condition of concessions in favor of civil liberty. He was but 
twenty-five years of age when he ascended the throne ; and, as 
might have been expected from his education under his father 
James, he was imbued with the highest notion of his royal power 
and prerogative. But he had to encounter in Parliament the same 
band of patriots that had so boldly struggled with his father — the 
most able and determined men in the nation. Against them, 
Charles, firm in " the divinity that doth hedge a king," pitted his 
friend and favorite the Duke of Buckingham, as his chief minister, 
a nobleman who had been popular in the latter Parliament of 
James, but of " whose exorbitant power and abusive carriage " the 
Parliament of Charles had conceived the greatest apprehension and 
dislike. 

Charles, moreover, placed himself in a disadvantageous condition 
for a contest with Parliament, by adopting the war with Spain, 
which his father had threatened, but which was not yet commenced, 
for the recovery of the Palatinate ; and from which his accession 
gave him an excuse for withdrawing. By entering into war he 



304 THE STUARTS. CHARLES I. 

increased his necessities to an extent so great that they could not 
be supplied by the ordinary means of the crown, which had been so 
reduced as to be barely sufficient for peaceful times ; on the other 
hand, the people gaining a positive advantage by the withholding 
of subsidies, their representatives in Parliament could coolly and 
deliberately pursue their policy of requiring redress of grievances 
as the condition of supply. 

CHARLES'S FIRST PARLIAMENT. 

Charles was anxious to assemble Parliament immediately after 
his accession, in order to obtain supplies for the war ; but a plague 
was raging, and his marriage with the Princess Henrietta Maria of 
France occupied his attention. Two days after his marriage, on 
the 18th of June, 1625, Parliament assembled. He opened it in a 
good-humored speech, in which, referring to the votes of the parlia- 
ments of James, he held the present Parliament responsible for the 
war ; and he reminded them that he was employed by Parliament 
to advise his father to break off treaties with Spain for peace, and 
his own match with a Spanish princess. 

He was followed by the lord keeper Williams, who explained 
that the king's main reason for calling the Parliament was to 
remind them of their engagements for the recovery of the Palatin- 
ate and to let them understand that the supplies granted in the 
last Parliament of James were spent (whereof the account was 
ready), together with as much more of the king's own revenue. He 
added that the king desired them to bestow this first meeting on 
his, or rather on their actions ; and the next should be theirs, to be 
applied to domestic purposes, as soon and as long as they pleased. 

The Commons tried to procrastinate. The plague was raging ; 
and they complained that they were distracted from business, by 
the tolling of the bell every minute whilst they were speaking. 
They petitioned the king for a recess " this sickly season." He 
answered that as soon as he should hear that they were ready with 
their bills, he would put an end to the session. Next day the 
Commons passed a bill, granting two entire subsidies. They also 
passed a bill granting tonnage and poundage for one year, instead 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 305 

of for life, and thus opened an unceasing dispute between the king 
and the Parliament. The Lords, on the ground that former grants 
to the king's predecessors had been for life, refused their consent 
to the bill, and Charles caused the duties to be collected without 
any parliamentary authority. 

The Parliament adjourned on the 11th of July, on account of 
the plague ; it reassembled in August at Oxford, in the great hall 
of Christ Church. The king again addressed them, and reminded 
them of their obligations to provide for the war. His secretaries 
informed the House of Commons that the two subsidies they had 
granted were either spent or anticipated, and they moved for a fur- 
ther supply of two subsidies and two fifteenths. The Commons 
debated this motion at great length, without coming to any deci- 
sion ; their antipathy to the Duke of Buckingham influencing them 
against the king. The debate resulted in no supply, and after 
various matters had been agitated, Charles, believing there was no 
present intention to grant a supply, resolved to show his displea- 
sure by dissolving Parliament. 

By its dissolution the ordinary constitutional means of provid- 
ing money to defray the charge of the fleets and armies were cut 
off". Becourse was therefore had to the old expedient of compul- 
sory gifts and loans. Letters were addressed in the king's name to 
the lord lieutenants of counties, directing them to collect as many 
persons' names as might be of ability to furnish the king with 
money ; but they were cautioned not to deal with noblemen, nor 
with the clergy, who were to be left to their metropolitans. The 
privy seal followed the return, and left the involuntary contributor 
little room for escape. 

SECOND PARLIAMENT. 

Although these loans were industriously pressed, they were not 
sufficiently productive to meet the king's urgent necessities, and he 
resolved to call another Parliament, which assembled on the 6th of 
February, 1625-6, still in the first year of his reign. From the first, 
it was hostile to him. Charles in no way attempted to conciliate 
the Commons. His view of his relation to the House of Commons 



306 THE STUAKTS. CHAKLES I. 

was that he was an absolute prince ; and that if the Commons, who 
assembled by his permission, did not perform their duty of raising 
supplies with the least inconvenience to the people, he was empow- 
ered by his prerogative to tax them without consent of Parliament. 
The Commons had practically admitted this theory in the reigns of 
the Tudors ; but the spirit and freedom of the Plantagenet period 
were now revived ; and, led by men of commanding intellect and 
great determination of purpose, the Commons presented an unwav- 
ering opposition to every illegal or enlarged exercise of the royal 
prerogative. Sir Thomas Coventry, the new lord keeper, opened 
the Parliament in a high prerogative speech. .The Commons, on 
the other hand, widened the difference between the king and them- 
selves by impeaching the Duke of Buckingham ; and whilst they 
were preparing materials for the charges, the king sent a letter to 
the speaker, urging for a full and perfect answer of what they would 
give for his supply, according to his expectation and their promises. 
The Commons, full of their intended impeachment of the Duke of 
Buckingham, answered " that because they could not doubt that 
the king would be pleased graciously to accept the faithful and 
necessary information and advice of his Parliament (which could 
have no end but the king's honor and safety of his realm) in dis- 
covering the causes, and proposing the remedies, of those great evils 
which had occasioned his wants and his people's griefs ; they there- 
fore in full confidence and full assurance of redress therein, did 
with one consent propose that they really intend to supply and 
assist the king, in such a way, and in so ample a manner, as might 
make him safe at home, and feared abroad." 

Charles received their observations as directed against Bucking- 
ham, and he sent a haughty reply to the speaker. After thanking 
the Commons for their answer, he observed that he must let them 
know that he would not allow any of his servants to be questioned 
among them, much less such as were of eminent place and near 
unto him. He concluded by saying, " I wish you would hasten my 
supply, or else it will be worse for yourselves ; for, if any ill hap- 
pen, I think I shall be the last that shall feel it ; " — a threat which 
shows that Charles had not calculated the difficulty of his position 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 307 

in a contest with the Parliament, or that he confidently reckoned 
on obtaining sufficient money by force of his prerogative. 

The Commons resolved that three subsidies and three fifteenths 
should be granted to the king, payable at three different times ; the 
bill to be brought in when tlxey had presented their grievances and re- 
ceived the Icing' 1 s answer to them. That resolution, which was an 
indefinite procrastination of the supply, gave the king great offence ; 
and on the following day he sent a message to both houses, requir- 
ing their attendance at Whitehall on the next day. He addressed 
them in a speech in which he complimented and thanked the Lords 
for their care of the kingdom, and expressed his sorrow to the Com- 
mons that he might not justly give the same thanks to them ; but 
he must show them their errors and, as he might call it, their un- 
parliamentary proceedings. The lord keeper, as on the former 
occasion, enforced the king's speech, requiring, as their final answer, 
what further supply they would add to that they had already 
agreed on ; and that to be without condition either directly or indi- 
rectly, for the supply of the king's great and important affairs. 

The king's rebukes and his lord keeper's demands called forth 
a remonstrance from the Commons to the king, which was presented 
to him on the 5th of April by a select committee. They justified 
their proceedings against Buckingham by one of those declarations 
of rights which had now become usual on important occasions ; by 
which, as they could not resist, they recorded on their journals 
their protest against the prerogatives assumed by the king. They 
declared " that it had been the usual, constant, and undoubted 
right and usage of Parliament to question and complain of all per- 
sons, of what degree soever, found grievous to the commonwealth, 
in abusing the power and trust committed to them by their sov- 
ereign. And as to the supply, that though it had been the long 
custom of parliaments to handle the matter of supply with the last 
of their businesses ; yet, at that time, out of extraordinary respect 
to his person and care of his affairs, they had taken the same into 
speedy consideration, and had agreed to a resolution for a present 
supply, as was well known to the king." 

Having thus asserted their sonstitutional rights, the Commons 
proceeded to the consideration of the supply. It was pointed out, 



308 THE STUARTS. CHARLES I. 

on the part of the king, that the subsidies had decreased in pro- 
ductiveness, and therefore that one subsidy and one fifteenth more 
ought to be given, payable after the three agreed to had been col- 
lected. A bill for a grant of tonnage and poundage was also in the 
course of preparation by the house ; but concurrently with it, the 
house ordered to be drawn up a remonstrance to the king against his 
taking those duties without grant of Parliament. The addition of 
a fourth subsidy was agreed to, and when the account of the whole 
grant was signified to the king, he said " that he accepted it in 
very good part, but desired such speed might be used in it that it 
might do him good." 

It' would not promote the object we have in view, to enter into 
the details of the impeachment of Buckingham which now took 
place. The charges against him were founded on the abuse of his 
influence with the king, and thus obtaining a plurality of appoint- 
ments— trani eking in oflices — and the abuse of his power as lord 
high admiral ; and they conclude with a charge of having given a 
posset and a plaister to the late King James in his last illness, 
referring to suspicions of poison, which were publicly talked of at 
the death of James. These were not treated otherwise than as 
personal charges. No constitutional question of ministerial respon- 
sibility was involved. But there arose a question of privilege of 
constitutional importance, which requires our notice. The Com- 
mons presented their charges against the duke to the Lords, and 
appointed eight of their most distinguished members to support the 
charges before a committee of the upper house. Two of them, 
Sir Dudley Diggs and Sir John Elliot, gave offence to the king in 
their speeches before the Lords, and he committed them to the 
tower. 

The Commons resented the imprisonment of their two members, 
and resolved to suspend all business till they should be righted in 
their privileges. The Lords came forward to the relief of this 
difficulty with the assurance of a large number of the peers that 
there had been a misapprehension as to the words used by Sir 
Dudley at the conference ; and the king being satisfied that Sir 
Dudley had not spoken the words imputed to him, he was released 
from the tower. On the next day he took his seat in the house, 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 309 

and made a protestation " that the words charged on him were so 
far from being his words, that they never came into his thoughts." 

But the case of Sir John Elliot was not so easily disposed of. 
In addition to the freedom of his remarks on Buckingham, he had 
used in speaking of him contemptuous expressions. It was particu- 
larly complained that he had spoken of him as " that man?' 1 The 
chancellor of the exchequer informed the house that " although the 
king disliked the whole manner of his delivery of that which he had 
commandment from the house to speak, yet the king charged Sir 
John Elliot with things extra-judicial to that authority." It was 
desired that the word extra-judicial should be explained. Mr. Chan- 
cellor said it was the king's own word, and therefore he could not 
do it. On the 20th of May a motion was made, with apparent 
irony, that Sir John Elliot should come and take his seat, having 
been charged with high crimes, extra-judicial to that house. The min- 
isters allowed of his coming, and the vice-chamberlain having re- 
peated the charges, Sir John justified what he had said, as author- 
ized by his instructions from the house. The house resolved that 
Sir John Elliot had not exceeded the commission given him in the 
late conference with the Lords ; and a like resolution was carried 
in the case of Sir Dudley Diggs — both without one negative. 

The subsidies, which the House of Commons had agreed to, were 
a very liberal supply, and, as we have seen, were approved by 
Charles, " provided he had them with speed, so that they might do 
him good." But several weeks elapsed without any progress towards 
completing the grant. Charles, impatient of delay, and, it would 
seem, having taken the resolution to punish it by a dissolution of 
Parliament, showed his displeasure in a letter to the speaker, which 
he desired to be read publicly to the house. He pointed out that 
unless the supply were presently concluded, it would be of little 
use ; and if by their denial or delay, anything of ill consequence 
should fall out, either at home or abroad, he called God and man to 
witness that he had done his best to prevent it, by calling his peo- 
ple together to advise with him ; by opening the weight of his occa- 
sion to them ; and by requiring their timely help and assistance in 
those actions wherein he stood engaged by their own counsel. The 
Commons prepared a declaration by way of answer to the king's 



310 THE STUARTS. CHARLES I. 

letter. It was agreed to on the 14th of June, and ordered to be 
presented to the king by the speaker, attended by the whole house. 
But in the mean time the king had determined to dissolve the Par- 
liament ; and on the 15th of June the Commons were summoned to 
the House of Lords, to hear the royal commission for the dissolution 
read. The peers petitioned the king, and offered him their loyal 
and faithful advice to continue the Parliament, by which the dan- 
gers at home and abroad might be prevented, and his majesty made 
happy in the duty and love of his people. The king, angry and 
impetuous, answered, " No, not a minute," and the Parliament was 
dissolved. 

This abrupt and ill-considered measure forced the king upon 
the old illegal projects for supplying his necessities. An order in 
council commanded all the tonnage and poundage duties to be 
levied and paid. A commission was issued to arrange with Jesuits, 
popish, priests, and recusants, to dispense with the laws and penalties 
affecting them, in consideration of money to be paid to the king. 
The nobility were applied to; and a loan of £100,000 was de- 
manded from the city of London. All the sea-port towns were 
ordered to fit out ships for the guarding of their own coasts — the 
city of London being ordered to set out twenty of the best that lay 
in the Thames. 

Many persons refused payment of the imposed loan, and were 
committed to prison. Amongst these we find the eminent names 
of Sir Thomas Wentworth and John Hampden, who were, by an 
order in council, removed to prisons distant from their own counties. 
Other five gentlemen, so imprisoned, obtained writs of habeas 
corpus ; but they were remanded to prison by the judges, as being 
imprisoned by the command of the king. Sir Peter Hayman, 
refusing payment, was called before the council, who sent him on 
service to the Palatinate. But the opposition of these eminent 
men, on constitutional grounds, did not prevent the compliance of 
great numbers of the people, and a large sum was raised. It was 
employed in fitting out an expedition for the relief of the Protes- 
tants of Rochelle. The conduct of the affair was entrusted to 
Buckingham, who abandoned the Protestants to the tender mercy 
of the French king, and made a descent on the Isle of Bhe. 



FIRST THREE PARLIAMENTS TO PETITION OP RIGHT. 311 

The expedition was wholly unsuccessful, and the people, finding 
themselves at war with both France and Spain, became alarmed at 
their defenceless state. A general desire was expressed that Par- 
liament should assemble. The king held a great council at White- 
hall, to which Sir Robert Cotton was called to give his advice. He 
advised that a Parliament should be called, at which the king 
should endeavor, by a gracious yielding to their just petitions, to 
win the people's hearts, which would give him their purses ; and 
that Buckingham, to remove the people's personal dislike toward 
him, should appear as a prominent adviser for calling the Parlia- 
ment. " But could it be imagined," says Lord Clarendon, " that 
those men would meet again, in a free convention of Parliament, 
without a sharp and severe expostulation and inquisition into their 
own right, and the power that had imposed upon that right ? " 

THIRD PARLIAMENT. 

A new Parliament met on the 17th of March, 1627-8, in the 
third year of Charles's reign. It had been deemed advisable to 
release the persons imprisoned for refusing the loan ; and seventy- 
eight, of whom some were chosen into the new Parliament, were released. 
Charles opened it in a threatening and unconciliatory speech. 
" There is none here," he said, " but knows that common danger is 
the cause of this Parliament, and that supply, at this time, is the 
chief end of it. .... I will use but few persuasions ; for if these be 
not sufficient, then no eloquence of men or angels will prevail. If 
you (as God forbid) should not do your duties, in contributing what 
the state at this time needs, I must, in the discharge of my con- 
science, use those other means which God hath put into my hands, 
to save that which the follies of some particular men may otherwise 
hazard to lose. Take not this as a threatening, but an admonition ; 
for I scorn to threaten any but my equals." 

The Commons, as in the preceding Parliament, all took the 
sacrament, and at their desire the king appointed a general fast. 
The late proceedings furnished them with numerous grievances ; 
and complaints were made against the Government for billeting of 
soldiers upon the people, raising money by loans, and, above all, for 



312 THE STUARTS. CHAELES I. 

the imprisonments for refusal of the loan ; — and especially for the 
violation of the principle of the writ of habeas corpus in the case 
of the five gentlemen whom the judges recommitted to prison be- 
cause it was returned that they were committed by command of the 
king. A motion was made for a committee of grievances ; and the 
utmost concession which the king's secretary could obtain, in the 
way of attention to his demand of ships and men for the king's use, 
was, that the same committee should take the king's propositions 
into consideration. The house went into committee, with instruc- 
tions to take into consideration the liberty of the subject in his per- 
son and in his goods, and also the king's supply. The grievances 
were reduced in the debate that followed to six heads : 1. Attend- 
ance at the council board; 2. Imprisonment; 3. Confinement; 
4. Designation to foreign employment ; 5. Martial law ; 6. Un- 
due proceedings in matters of judicature. 

Sir Peter Hayman described to the house the manner in which 
he was dealt with by the council, and sent to the Palatinate. " I 
was called before the lords of the council ; for what, I knew not ; 
but I heard it was for not lending on a privy seal. I told them, 
if they will take my estate, let them ; I would give it up ; lend I 
would not. They laid to my charge my unwillingness to serve the 
king. I said I had my life and my estate to serve my country and 
my religion. They told me that if I did not pay, I should be put 
upon an employment of service. I was willing. After ten weeks 
waiting, they told me I was to go with a lord into the Palatinate, 
and that I should have employment there, and means befitting. I 
told them I was a subject, and desired means. Some put on very 
eagerly, some dealt nobly. They said I must go on my own purse. 
I told them, nemo militat suis expensis. Some told me I must go. I 
began to think, what must I. None were ever sent out in that way. 
Lawyers told me I could not be sent. Having this assurance, I 
demanded means, and was resolved not to stir but upon those terms, 
and in silence and duty I denied. Upon this, having given me a 
command to go, after twelve days they told me they would not send 
me as a soldier, but to attend on an ambassador. I knew that 
stone would hit me, therefore I settled my troubled estate and ad- 
dressed myself to that service." 



FIEST THREE PARLIAMENTS TO PETITION OF RIGHT. 313 

The debate was continued on the other heads. Confinement was 
distinguished from imprisonment, as being the restraint of a subject 
to his own house or elsewhere. But (it was said) either was an inter- 
ference with that liberty which is the right of the subject, and of 
which none can be deprived but by the law of the land. The rem- 
edy for regaining the liberty of the person when illegally restrained 
is the writ of habeas corpus ; which was shown in the debates to 
be coeval with the statutes passed for the liberty of the subject by 
Edward III., cases having been cited of the use of the writ in 
that reign ; so that the laws which gave liberty of the person were 
accompanied by a remedy for regaining it when restrained. Mr. 
Selden, at a conference with the lords, explained the mode of pro- 
cedure ; that the writ of habeas corpus is the highest remedy for 
him that is imprisoned by the special command of the king, or the 
lords of the privy council, without showing the cause of commit- 
ment ; and if any man be imprisoned, by that or any other author- 
ity, this writ is to be granted to him, and ought not to be denied. 
It is directed to the keeper of the prison, in whose custody the pris- 
oner is, commanding him that after a certain day, he bring in the 
prisoner, with the cause of his detention, and sometimes with the 
cause of his caption ; and he, with the return, filed to the writ, 
brings the prisoner to the bar at the time appointed ; and the court 
judges of the sufficiency or insufficiency of the return. If they find 
him bailable, he is committed to the marshal, the proper officer of 
the court, and then afterward delivered to bail. But if it appear 
to the court that the prisoner ought not to be bailed, nor discharged 
from the prison whence he is brought, then he is remanded and sent 
back again to the prison from whence he came, there to continue, 
till by due course of law he be delivered. 

The debate terminated in the following resolutions, unanimously 
agreed to in a committee of the whole house on the 3d of April : 

1. That no freeman ouglit to be committed, or detained in prison, 
or otherwise restrained by command of the king, or the privy council, 
or any other ; unless some cause of the commitment, detainer, or 
restraint be expressed, for which, bxj law, he ought to be committed, 
detained, or restrained. 

2. That the writ of habeas corpus cannot be denied, but ought to be 

14 



314 THE STUARTS. CHARLES I. 



to every man that is committed or detained in prison, or other- 
wise restrained by command of the king, or the privy council, or ant 
other ; he praying the same. 

3. That if a freeman be committed or detained in prison, or 
otherwise restrained by command of the king, privy council, or any 
other, no cause of such commitment being expressed, and the same 
be returned upon an habeas corpus, granted for the said party, — 
then that he ought to be delivered or bailed. 

4. That the ancient and undoubted right of every freeman is, 
that he hath a full and absolute property in his goods and estate ; 
and that no tax, tallage, loan, benevolence, or other like charge, 
ought to be commanded or levied by the king or his ministers, 
without common assent of Parliament. 

On the subjects of these resolutions, the Lords, at the 
request of the Commons, appointed a conference, at which 
the managers of the Commons were instructed to endeavor to 
induce the Lords to join in a petition to the king for a con- 
firmation of these resolutions. But before the conference was 
concluded, the Commons, after receiving another message from 
the king to hasten the supply, came to a unanimous vote that five 
subsidies should be given to the king. This gave Charles great 
joy. Mr. Secretary Cook reported to the house the king's accept- 
ance of the subsidies, and the great satisfaction which the vote had 
given him. But another message, a few days afterward, urging 
the completion of the vote by an act without delay — in which he 
cautioned the Commons not to bend themselves against the extension of 
his royal power, but to meddle only with pressures and abuses of 
power — gave the Commons offence, and they appointed a committee 
of ten members to consult on their grievances, and to give their 
substance under several heads, as instructions for their speaker to 
deliver them to the king in a speech. In these instructions, besides 
other matters, it was asserted — That it is the ancient right of 
Parliament to dispose of matters there debated in their own 
method ; — that it is their ancient custom to consider grievances 
before matters of supply ; — that yet, nevertheless, in this Parlia- 
ment, to express our affection to his majesty, contrary to our ordi- 
nary proceedings, we have proceeded to supply as far as we could 



FIRST THEEE PARLIAMENTS TO PETITION OF RIGHT. 315 

in committee ; and, so far from delaying, that, postponing the com- 
mon and pressing grievances of the nation, we have given precedency 
to the supply- joining with it only the fundamental and vital liber- 
ties of the kingdom that give subsistence to the subject. 

The speaker presented at the same time a petition from the 
House of Commons concerning the billeting of soldiers, denouncing 
the practice as against the absolute property which every freeman, 
by the fundamental laws of the realm, had in his goods and estate. 
The petition pointed out in long detail the mischiefs and exactions 
arising from the king's subjects being compelled to receive and 
lodge soldiers in their houses, and to contribute toward the main- 
tenance of them ; the service of Almighty God was greatly hindered, 
the people in many places not daring to repair to church, lest in 
the mean time the soldiers should rifle their houses ; the government 
of the country contemned, the officers of jiLstice being resisted and 
endangered ; the rents of the gentry diminished, as the farmers, to 
secure themselves and families from the soldiers' insolence, retired 
themselves to places of more secure habitation ; husbandmen cor- 
rupted ; tradesmen and artificers discouraged ; markets unfre- 
quented ; and robberies, rapes, rapines, murders, and barbarous 
cruelties generally complained of — of which few have been so much 
as questioned, and fewer punished. 

These grievances, under the general title of " The Liberty of the 
Subject," occupied the attention of the House of Commons, and, 
through their influence, the attention also of the House of Lords, 
almost exclusively of all other business, for two months, when the 
debates terminated in the celebrated Statute or " Petition of 
Right." 

The king tried to avert the further consideration of this matter 
by the Commons, by offering his royal word to observe the liberties 
of the subject as declared by the ancient statutes. He went on 
the 28th of April to the House of Lords ; and sending for the 
Commons, the lord keeper, by order of the king, addressed them, 
and referred to the expense of time that had been occasioned by the 
debate in both houses — in which as they professed that they would 
not diminish or blemish the king's prerogative, so he presumed 
that " they would all confess it a point of extraordinary grace and 



316 THE STUARTS. CHARLES I. 

justice in bim to suffer it to rest so long in dispute without inter- 
ruption. But as the debate took more time than the affairs of 
Christendom could permit, bis majesty had thought of an expedient 
to shorten the business, by commanding him to let them know that 
he holds Magna Charta and the other statutes all in force, and that 
he will govern according to them ; and that you shall find as much 
security in his royal word and promise as in the strength of any 
law you can make." 

The House of Commons, not moved by the king's expedient, ap- 
pointed a committee of lawyers to draw a bill, containing the sub- 
stance of Magna Charta and the other statutes concerning the 
liberty of the subject. Another message from the king was deliv- 
ered by Mr. Secretary Cook, that, " to show clearly that it would 
not be the king's fault if this be not a happy Parliament, he had 
commanded him to desire the house clearly to let him know whether 
they would rest on his royal word, which he did assure them should 
be really and royally performed." But on his own account as a 
privy counsellor, the secretary told the house that he must commit, 
on the king's order, and neither express the cause to the jailer nor 
to the judges, nor to any counsellor in England, except the king 
himself. Yet (he said) u this power was not unlimited, and was 
rather a charge and danger ; for if by this power he should commit 
the poorest porter upon what should appear not a just cause, he 
should suffer a burden heavier than the law could inflict, for he 
should lose his credit with his majesty and also his place." 

Before the house had come to any conclusion on that message, 
the secretary delivered, on the 2d of May, another message from 
the king, " that time would not admit of more debate or delay, and 
that the session of Parliament must continue no longer than Tuesday 
come sevennight at the furthest ; in which time his majesty, for 
his part, would be ready to perform what he had promised ; and if 
the house were not as ready to do what was fit for themselves, it 
should be their own faults." It was intimated that, upon assurance 
of their good despatch and correspondence, it was his majesty's in- 
tention to have another session of Parliament at Michaelmas next, 
for the perfecting of such things as could not then be done. The 
Commons, by their speaker, answered the several messages, expressing 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 317 

full trust and confidence in the royal word and promise ; yet, as 
there had been public violation of the laws and the subjects' liberties, 
by some of the king's ministers, they conceived that no less than a 
public remedy would raise the dejected hearts of his subjects to a 
cheerful supply of his majesty, or make them receive content in the 
proceedings of the house. The king answered by the lord keeper 
that, to show the sincerity of his majesty's intention, he is content 
that a bill be drawn for a confirmation of Magna Charta, and 
the other six statutes insisted upon for the subjects' liberties, but so 
as to be without additions, paraphrases, or explanations. 

But notwithstanding the permission given for a bill, Mr. 
Secretary Cook, on the next day, again pressed the house to rely 
on the king's word as an assurance that bound the king further 
than the law could. He urged that the debate should take place 
in the house, and not in a committee of the whole house, but Sir 
John Elliot replied, " that the proceeding in a committee is more 
honorable and advantageous both to the kino; and the house ; for that 
way tends most to truth, as it is a more open way, where every man 
may add his reasons, and make answer upon the hearing of other 
men's reasons and arguments." The debate accordingly proceeded 
in committee ; " and the key was brought up, and none were to go 
out without leave first asked. Sir Edward Coke persuaded the house 
to proceed by bill. " Was it ever known," said he, " that general 
words were a sufficient satisfaction to particular grievances ? The 
king's answer is very gracious ; but what is the law of the realm ? 
that is the question. I put no diffidence in his majesty ; but the 
king must speak by record, and in particular, and not in general. 
Let us put up a petition of hight ; not that I distrust the king, 
but that I cannot take his trust but in a parliamentary way. 

The Commons having finished the petition, desired a conference 
with the Lords, which was held on the 8th of May, but their pro- 
ceedings were suspended by a letter from the king, sealed with the 
royal signet, and delivered by the Duke of Buckingham. Referring 
to the leave he had given for debate on the highest points of royal 
prerogative — which none of his predecessors would have permit- 
ted — he found it still insisted upon, notwithstanding his several mes- 
sages, that neither he nor his privy council have power to commit 



318 THE STUARTS. CHARLES I. 

any man without cause shown ; whereas it often happened that, 
should the cause be shown, the service itself would thereby be des- 
troyed and defeated. He informed the Lords that without the 
overthrow of his sovereignty, he could not suffer that power to be 
impeached : but he declared that neither he nor his privy council 
should or would commit or command to prison, or otherwise re- 
strain the person of any man for not lending money to him, nor for 
any other cause which in his conscience did not concern the 
public good of himself and his people ; that he would not be drawn 
to pretend any cause, wherein his judgment and conscience were 
not satisfied ; and that in all cases, upon the humble petition of 
the party, or address of the judges to him, he would readily and 
really express the true cause of their commitment or restraint, so 
soon as, with convenience and safety, the same was fit to be disclosed 
and expressed. This he thought fit to signify, to shorten any long 
debate upon this question. 

The king's letter impressed the House of Lords with a desire 
to render the petition acceptable to him. They prepared a saving 
clause of the king's sovereign power — " to leave entire the sovereign 
power of the king " — which in a conference the Commons rejected. 
The king also interposed messages to the Lords, urging a speedy 
decision ; but at length, on the 26th of May, the Lords, after 
several conferences with the Commons, agreed to the petition as 
prepared by them, with a few verbal alterations. They contented 
themselves with a declaration, by their own house alone, to the 
king, that their intention was not to lessen or impeach anything 
which by the oath of supremacy they had sworn to assist and de- 
fend. The petition was delivered on the 28th of May, by the 
lord keeper, to the king, in the presence of both houses, and it was 
requested that his majesty would please to give his assent to it 
in full Parliament. 

The substance of this great constitutional statute is as follows : 
It is the petition of the lords spiritual and temporal and commons, in 
Parliament assembled, and is addressed to the king. It begins by — 

1. Reciting the ancient laws against taxation without consent 
of Parliament ; — it declares that, notwithstanding such laws, com- 
missions have issued, by which the people have been assembled and 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 319 

required to lend money to your majesty; and many upon their 
refusal, have had an oath administered to them, not warrantable by the 
laws and statutes, and have been constrained to become bound to make 
appearance, and to give attendance before your privy council, and in 
other places ; and others have been imprisoned, confined, and sundry 
other ways molested and disquieted. Divers other charges have been 
laid and levied on the people, in several counties, by lord lieutenants, 
deputy lieutenants, commissioners for musters, justices of peace, 
and others, by command or direction from your majesty, or your 
privy council, against the laws and customs of the realm. 

2. Reciting the ancient laws for securing the liberty of the subject, 
the petition declares that against the tenor of such laws, divers of your 
subjects have of late been imprisoned without any cause showed ; and 
when for their deliverance they were brought before your justices, by 
writs of habeas corpus, there to undergo and receive as the court should 
order — and their keepers commanded to certify the causes of their 
detainer — no cause was certified, but that they were detained by your 
majesty's special command, signified by the lords or your privy 
council ; and yet were returned back to several prisons, without being 
charged with anything to which they might make answer 
according to the law. 

3. Great companies of soldiers and mariners (it declares) have 
of late been dispersed into several counties ; and the inhabitants, 
against their wills, have been compelled to receive them into their 
houses, and there to suffer them to sojourn, against the laws and 
customs of the rea 7 m, and to the great grievance and vexation of 
the people. 

4. Reciting Magna Charta and the ancient statutes, that no 
man should be tried, or be adjudged to death, but by the law of 
the realm, it declares that of late, commissions under your majes- 
ty's great seal have issued forth, by which certain persons have 
been assigned and appointed commissioners, with power and au- 
thority to proceed, within the land, according to the justice of martial 
law, against such soldiers or mariners, or other dissolute persons 
joining with them, as should commit murder, robbery, felony, 
mutiny, or other outrage or misdemeanor whatever ; and by such 
summary cause and order as is agreeable to martial law, and is 



320 THE STUARTS. CHARLES I. 

used in armies in time of war, to proceed to the trial and condem- 
nation of such offenders, and to cause them to be executed and put 
to death, according to the martial law. By pretext whereof some of 
your majesty 's subjects have been put to death, when, if they deserved 
death, they ought by the statutes of the land, and by no other, 
to have been adjudged and executed ; and other grievous offenders 
have escaped the punishment due to them by the laws of the realm, 
by reason that your officers and ministers of justice have unjustly 
refused or forborne to proceed against such offenders, according to 
the laws of the realm, upon pretence that the offenders were 
punishable only by martial law, and by authority of the commis- 
sions ; which commissions, and all others of a like nature, are 
directly contrary to the laws and statutes of your realm. 

1. The petitioners prayed that no man hereafter be compelled 
to make or yield any gift, loan, benevolence, tax, or such like 
charge, without common consent by act of Parliament ; and that 
none be called to make answer, or take such oath, or to give attend- 
ance, or be confined or otherwise molested or disquieted concern- 
ing the same, or refusal thereof. 

2. That no freeman, in any such manner as is before mentioned, be 
imprisoned or detained. 

3. That your majesty would be pleased to remove the soldiers 
and mariners, and that your people may not be so burdened in 
time to come. 

4. That the commissions for proceeding by martial law may be 
revoked and annulled ; and that hereafter no commissions of like nature 
■may issue forth to any person or persons whatsoever to be executed as 
aforesaid, lest by color of them any of your majesty 1 s subjects be 
destroyed, or put to death, contrary to the laws and franchise of 
the land. 

All which they most humbly pray of your most excellent 
majesty as their RIGHTS and LIBERTIES according to the 
LAWS and STATUTES of this realm : and that your majesty 
would also vouchsafe to declare that the awards, doings, and pro- 
ceedings to the prejudice of your people in any of the premises, 
shall not be drawn hereafter into consequence or example ; and 
that your majesty would be also graciously pleased, for the fur- 



FIRST THKEE PARLIAMENTS TO PETITION OF EIGHT. 321 

ther comfort and safety of your people, to declare your royal will 
and pleasure — that in the things aforesaid, all your officers and minis- 
ters shall serve you according to the laws and statutes of this realm, 
as they tender the honor of your majesty and the prosperity of 
this kingdom. 

The king attended in the House of Lords on the 2d of June, 
to give his royal assent to the petition, in the presence of the Lords 
and Commons. It was read over by the clerk ; but instead of 
adopting the ancient form of the royal assent — " Soit droit fait 
comme est desire " — the king made the following answer : 

" The kirig willeth that right be done according to the laws 
and customs of the realm ; and that the statutes be put in due exe- 
cution, that his subjects may have no cause to complain of any 
wrong or oppressions, contrary to their just rights and liberties ; 
to the preservation whereof he holds himself, in conscience, as well 
obliged, as of his own prerogative." 

On the return of the Commons to their house the king's answer 
was read, and dissatisfaction was expressed at the departure from 
the legal form. But the consideration of it was postponed, for 
another matter had arisen, more absorbing than even that of the 
liberty of the subject. 

The Church sympathized with the king in his struggle for pre- 
rogative, and the pulpit had been used to intimidate the people 
by the terrors of Divine punishment from resisting the royal de- 
mands. Among these clerical politicians, one Dr. Mainwaring 
had become conspicuous for his enforcement of unconditional loyal- 
ty. He had preached two sermons before the king, and a third 
in his parish church, and these he afterward published in a book 
entitled ' Keligion and Allegiance.' He maintained that the king's 
royal command imposing taxes and loans without consent of Par- 
liament was so binding on the conscience of a subject of the king- 
dom that he could not refuse payment without peril of damnation ! 
And he moreover enforced it as a principle that the authority of 
Parliament was not necessary for the raising of aids and subsidies. 
Such a conversion of the Church into a political arena is always 
fraught with danger to a commonwealth. Nothing is so beneficial 
to society as the faithful preaching of the gospel of Jesus Christ ; 
14* 



322 THE STUARTS. CHAELES I. 

and nothing is so great a curse as the perversion of the pulpit to 
the purposes of politics ; but in England, where the Church and 
State are united, the use by the king of so potent an instrument as 
the established Church for the dissemination of his principles of 
absolutism was manifestly not to be endured. 

The Commons, therefore, prepared charges against Mainwar- 
ing, which they presented to the House of Lords, and called upon 
that house to make inquiry, and bring him to justice. The king 
tried to avert the Commons' proceedings by repeated messages to 
Lords and Commons, promising a faithful adherence to the Petition 
of Right, notwithstanding the irregularity of form in the assent, 
but finally intimating his intention to close the session on the 11th 
of the month ; " and because that could not be, if the house enter- 
tain more business of length, he required of them not to enter 
or proceed with any new business which might spend greater 
time, or which might lay any scandal or aspersion on the state, 
government, or ministers thereof." 

This message produced a debate and a scene in the House of 
Commons that should not be lost sight of in our constitutional his- 
tory. A restriction upon their liberties so important as one pro- 
hibiting them from censuring the king's ministers, could not be 
passed over in such a Parliament. A debate was opened, in which 
Sir John Elliot was the second speaker. He commented on that 
part of the message, " that they were not to enter on any business 
which might lay some aspersions on the government." " It is said 
also," he proceeded, " as if we cast some aspersions on his majesty's 
ministers. I am confident no minister, howsoever dear, can " — 
Here the speaker started up from the chair, and supposing that 
Sir John Elliot intended to censure the Duke of Buckingham, 
he said, " There is a command laid upon me to interrupt any 
that should go about to lay an aspersion upon the ministers of 
state." A deep silence followed ; — the speaker desired Jeave to 
go forth for half an hour ; and the house ordered that he might go 
forth, if he pleased. 

The house, in his absence, resolved itself into committee. The 
first member who spoke was in consternation ; he said, " That for 
the speaker to desire to leave the house in such a manner was never 



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 323 

heard of before, and he feared would be ominous." The next said 
there were two ways of proceeding : to go to the Lords, or to the 
king. He thought, " the latter our proper cause, as it doth concern 
our liberties ; and let us not fear to make a remonstrance of our 
rights." Sir Edward Coke, after quoting several ancient instances 
of the interference of Parliament with kings' ministers, said, " I 
think the Duke of Buckingham is the cause of all our miseries, and 
till the king be informed thereof, we shall never go out with 
honor, or sit with honor here. As for going to the Lords, that 
is not via regia ; our liberties are now impeached ; we arc deeply 
concerned. It is not via regia, for the Lords are not participants 
in our liberties. It is not the king, but the duke that saith, ' We 
require you not to meddle with state government, or the ministers 
thereof.' " Several members attributed these evils to the prevalence 
and permission allowed to popery, and " because those that use the 
king's power seek an utter subversion of our religion." Another 
said, " It is not the Duke of Buckingham alone that is the cause 
of the evils, but there are other great persons worthy of blame ; " to 
which it was replied, " Take away the one, and the rest will 
vanish." Many found excuse for the king, saying, " It is not King 
Charles counselling himself, but ill counsel followed that is given 
him by ill counsellors." The house was preparing to put the 
question, " That the Duke of Buckingham shall be instanced to be 
the chief and principal cause of all their evils," when the speaker 
returned with a message from the king, to whom he went when he 
left the chair — " That his majesty commands for the present, 
they adjourn the house till to-morrow morning, and all committees 
cease in the mean time," — and the speaker adjourned the house 
accordingly. 

The king did not maintain the absolute position which had pro- 
duced this scene. He sent, on the 6th of June, a message to the 
Commons, that he had no meaning of barring them of their just 
right, but only to avoid all scandals on his past counsel and ac- 
tions ; and that his ministers might not be, nor himself, under 
their names, taxed for their counsel to him. The speaker con- 
fessed that, when he left the house with its permission, he went to 
the king, who confirmed the latter message, stating that, It bars 



324 THE STUAETS. CHAELES I. 

you not of your right in matter ; nay, not in manner. The house 
for the present accepted the explanation as satisfactory. 

The Commons had now leisure to consider the king's evasive 
answer to the Petition of Right. At a conference with the Lords, 
held on the 7th of June, both houses agreed to address the king, 
" that he would please to give a clear and satisfactory answer, in 
full Parliament, to the petition." The message having been com- 
municated to the king, he appointed that day, at four in the after- 
noon, when he came to the House of Lords ; and the speaker, with 
the Commons being in attendance, the king commanded the clerk 
of Parliament to cut out his former answer entered in the journal, 
and he, at the same time, gave him another. After a speech from 
the lord keeper, requesting a more clear signification of the royal 
assent, the king made a short speech defending his former assent 
as sufficient, but concluding with, " Read your petition, and you 
shall have an answer that I am sure will please you." The peti- 
tion having been read, the clerk gave the king's assent — " Soit 
droit fait comme il est desire." a Let right be done as is desired," 
and the petition then became, in form and substance, an Act of 
Parliament. 

It is recorded in the Lords' journals that, at the conclusion of 
the business, the Commons gave a great and joyful applause ; and 
other authorities mention that they returned to their house with 
unspeakable joy, and resolved so to proceed as to express their 
thankfulness. The king added to the general satisfaction, by send- 
ing a message to the Commons — in anticipation of a request they 
were about to make — consenting that the petition and his answer 
should be recorded in the Courts of Westminster, as well as the 
Houses of Parliament. It is now time to give this great document 
in full. 



f t)e Petition of ftk}l)t. 



The Petition exhibited to his Majesty by the Lords Spiritual and 
Temporal, and Commons, in the present Parliament assembled, con- 
cerning divers Rights and Liberties of the Subjects, with the King's 
Majesty's Royal Answer thereunto in full Parliament. 

To the Xing'* s Most Excellent Majesty. 

Humbly show unto our Sovereign Lord the King, the Lords 
Spiritual and Temporal, and Commons, in Parliament assembled, 
That whereas it is declared and enacted by a Statute made in the 
Time of the Reign of King Edward the First, commonly called 
Statutum de Tallagio non concedendo, That no Tallage or Aid shall 
be laid or levied by the King or his Heirs in this Realm, without 
the good Will and Assent of the Archbishops, Bishops, Earls, 
Barons, Knights, Burgesses, and other the Freemen of the 
Commonalty of this Realm ; and by Authority of Parliament 
holden in the five and twentieth Year of the Reign of King Edward 
the Third, it is declared and enacted, That from thenceforth no 
Person should be compelled to make any Loans to the King against 
his Will, because such Loans were against Reason and the Franchise 
of the Land ; and by other Laws of this Realm it is provided, 
That none should be charged by any Charge or Imposition called a 
Benevolence, nor by such like Charge : by which, the Statutes 
before mentioned, and other the good Laws and Statutes of this 
Realm, your Subjects have inherited this Freedom, That they should 
not be compelled to contribute to any Tax, Tallage, Aid or other 
like Charge not set by common Consent in Parliament : 



326 PETITION OF RIGHT. 

II. Yet, nevertheless, of late divers Commissions directed to 
sundry Commissioners in several Counties, with Instructions, have 
issued ; by means whereof your People have been in divers places 
assembled, and required to lend certain Sums of Money unto your 
Majesty, and many of them, upon their Refusal so to do, have had 
an Oath administered unto them not warrantable by the Laws or 
Statutes of this Realm, and have been constrained to become bound 
to make Appearance and give Attendance before your Privy Coun- 
cil and in other Places, and others of them have been therefore im- 
prisoned, confined, and sundry other Ways molested and disquieted ; 
and divers other Charges have been laid and levied upon your 
People in several Counties by Lord Lieutenants, Deputy Lieu- 
tenants, Commissioners for Musters, Justices of Peace, and others, 
by Command or Direction from your Majesty, or your Privy Coun- 
cil, against the Laws and Free Customs of the Realm. 

III. And whereas also by the Statute called The Great Charter 
of the Liberties of England, it is declared and enacted, That no 
Freeman may be taken or imprisoned, or be disseized of his Free- 
hold or Liberties, or his Free Customs, or be outlawed or exiled, or 
in any Manner destroyed, but by the lawful judgment of his Peers, 
or by the Law of the Land. 

IV'. And in the eight and twentieth Year of the Reign of King 
Edward the Third, it was declared and enacted by Authority of 
Parliament, That no Man of what Estate or Condition that he be, 
should be put out of his Land or Tenements, nor taken nor im- 
prisoned, nor disherited, nor put to Death, without being brought 
to answer by due Process of Law : 

V. Nevertheless against the Tenor of the said Statutes, and 
other the good Laws and Statutes of your Realm to that End pro- 
vided, divers of your Subjects have of late been imprisoned with- 
out any Cause showed; and when for their Deliverance they 
were brought before your Justices by your Majesty's Writs of 
Haleas Corpus, there to undergo and receive as the Court should 
order, and their Keepers commanded to certify the Causes of their 
Detainer, no Cause was certified but that they were detained by 
your Majesty's special Command, signified by the Lords of your 
Privy Council, and yet were returned back to several Prisons, with- 



PETITION OF RIGHT. 327 

out being charged with any Thing to which they might make answer 
according to the Law. 

VI. And whereas of late great Companies of Soldiers and 
Mariners have been dispersed into divers Counties of the Realm, and 
the Inhabitants against their Wills have been compelled to receive 
them into their Houses, and there to suffer them to sojourn, against 
the Laws and Customs of this Realm, and to the great Grievance 
and Vexation of the People : 

VII. And whereas also by Authority of Parliament, in the five 
and twentieth Year of the Reign of King Edward the Third, it is 
declared and enacted That no Man should be forejudged of Life or 
Limb against the Form of the Great Charter and the Law of the 
Land ; and by the said Great Charter and other the Laws and 
Statutes of this your Realm, no Man ought to be adjudged to Death 
but by the Laws established in this your Realm, either by the Cus- 
toms of the same Realm, or by Acts of Parliament : And 
whereas no Offender of what kind soever is exempted from the 
Proceedings to be used, and Punishments to be inflicted by the 
Laws and Statutes of this your Realm : Nevertheless of late Time 
divers Commissions under your Majesty's Great Seal have issued 
forth, by which certain persons have been assigned and appointed 
Commissioners, with Power and Authority to proceed within the 
Land, according to the Justice of Martial Law, against such Soldiers 
or Mariners, or other dissolute Persons joining with them, as should 
commit any Murder, Robbery, Felony, Mutiny or other Outrage or 
Misdemeanor whatsoever, and by such summary Course and Order 
as is agreeable to Martial Law, and as is used in Armies in Time 
of War, to proceed to the Trial and Condemnation of such Offenders, 
and them to cause to be executed and put to Death according to 
the Law Martial : 

VIII. By Pretext whereof some of your Majesty's Subjects 
have been by some of the said Commissioners put to Death, when 
and where, if by the Laws and Statutes of the Land they had de- 
served Death, by the same Laws and Statutes also they might and 
by no other ought to have been judged and executed : 

IX. And also sundry grievous Offenders, by color thereof claim- 
ing an Exemption, have escaped the Punishments due to them by 
the Laws and Statutes of this your Realm, by reason that divers 



328 PETITION OF RIGHT. 

of your Officers and Ministers of Justice have unjustly refused or 
forborn to proceed against such Offenders according to the same 
Laws and Statutes, upon Pretence that the said Offenders were 
punishable only by Martial Law, and by Authority of such Com- 
missions as aforesaid; which Commission, and all other of like 
Nature are wholly and directly contrary to the said Laws and 
Statutes of this your Realm : 

X. They do therefore humbly pray your Most Excellent 
Majesty, That no Man hereafter be compelled to make or yield any 
Gift, Loan, Benevolence, Tax or such-like Charge, without common 
Consent by Act of Parliament ; And that none be called to make 
Answer, or take such Oath, or to give Attendance, or be confined, 
or otherwise molested or disquieted concerning the same, or for Re- 
fusal thereof; And that no Freeman, in any such Manner as is 
before mentioned, be imprisoned or detained ; And that your 
Majesty would be pleased to remove the said Soldiers and Mariners, 
and that your People may not be burthened in Time to come ; 
And that the aforesaid Commissions, for proceeding by Martial 
Law, may be revoked and annulled ; And that hereafter no Com- 
missions of like Nature may issue forth to any Person or Persons 
whatsoever to be executed as aforesaid, lest by Colour of them any 
of your Majesty's Subjects be destroyed, or put to Death contrary 
to the Laws and Franchise of the Land. 

XL All of which they most humbly pray of your Most Excel- 
lent Majesty as their Rights and Liberties, according to the Laws 
and Statutes of this Realm ; and that your Majesty would also 
vouchsafe to declare That the Awards, Doings and Proceedings, to 
the Prejudice of your People in any of the Premises shall not be 
drawn hereafter into Consequence or Example ; And that your 
Majesty would be also graciously pleased, for the further Comfort 
and Safety of your People, to declare your Royal Will and Pleasure, 
That in the Things aforesaid all your Officers and Ministers shall 
serve you according to the Laws and Statutes of this Realm, as they 
tender the Honor of your Majesty, and the Prosperity of this 
Kingdom. 

Qua quidem petitione lecta et plenius intellecta, per dictum Dominum 
Regem taliter est responsum in pleno parliamento, viz., Soit Droit fait 
comme est desire. 



CHAPTEE IX. 

CHARLES I.— FROM THE PETITION OF RIG ITT TO THE GRAND 
REMONSTRANCE. 

FIVE SUBSIDIES GRANTED TO THE KING — PUNISHMENT OF DR. MAINWARING ILLEGAL 

COMMISSION OF EXCISE CANCELLED — REMONSTRANCE OF THE COMMONS CON- 
CERNING TONNAGE AND POUNDAGE — PARLIAMENT PROROGUED — CHARLES'S 
SPEECH — REASSEMBLING OF PARLIAMENT — CONSIDERATION OF GRIEVANCES 
AND OUTRAGES — THE KING CONSENTS TO TONNAGE AND POUNDAGE AS A 

PARLIAMENTARY GRANT — FURTHER IRRITATIONS BY THE STAR CHAMBER 

CHARLES COMMANDS AN ADJOURNMENT — RESISTANCE OF THE COMMONS — 
THEIR PROTESTATION — CHARLES'S PROCLAMATION — IMPRISONMENTS — DISSOLU- 
TION — REMARKS OF CLARENDON — DARING PROCLAMATION BY THE KIN (3 

PROSECCTIONS OF THE IMPRISONED MEMBERS — DISREGARD OF HABEAS CORPUS 
BY THE JUDGES ROYAL EXACTIONS FROM THE PEOPLE FEUDAL OPPRES- 
SIONS AND FOREST LAWS RESTORED — SHIP MONEY JOHN HAMPDEN CHARLES'S 

doctrine of MILITARY NECESSITY sustained by the judges in an 

"EXTRA-JUDICIAL OPINION" THE SHORT PARLIAMENT GRIEVANCES CON- 
SIDERED SUPPLIES DEMANDED BY THE KING ANSWER OF THE COMMONS — DIS- 
SOLUTION — THE LONG PARLIAMENT — ITS TEMPER FROM THE FIRST — UNANIMITY 
OF LORDS AND COMMONS LATE PROCEEDINGS OF THE KING, AND THE EXTRA- 
JUDICIAL OPINION OF THE JUDGES IN REGARD TO SHIP MONEY DECLARED ILLE- 
GAL MONOPOLISTS AND PATENTEES EXCLUDED FROM PARLIAMENT HUMILIA- 
TION OF THE KING TENURE OF JUDGES' APPOINTMENTS TO BE HENCEFORTH FOR 

LIFE ACT FOR TRIENNIAL PARLIAMENTS — ACT TO PREVENT SUDDEN ADJOURN- 
MENTS AND DISSOLUTIONS — CHARLES GIVES UP HIS CLAIM TO TONNAGE AND 

POUNDAGE ABOLITION OF THE COURT OF STAR CHAMBER AND HIGH COMMISSION 

COURT — SHIP MONEY, FOREST CLAIMS, AND FEUDAL EXACTIONS ABANDONED 

OBSERVATIONS — SATISFACTION OF REASONABLE MEN AMONG THE COMMONS 

WELCOME OF THE KING IN LONDON ON HIS RETURN FROM SCOTLAND PURI- 
TANISM. 

The Commons gave proof of the conciliatory effect of the pro- 
ceedings we have just related by passing a bill granting five subsi- 
dies to the king. Sir Edward Coke carried it to the Lords, 



330 CHARLES I. 

accompanied by almost the whole house. The Lords took excep- 
tion to the form of the bill, that the Commons alone were named 
in the preamble. Several conferences took place, but the Commons 
evaded any alteration ; and from this time settled the custom of 
making money bills, in form as well as procedure, a grant from the 
Commons alone. 

The king had announced his intention to prorogue the Parlia- 
ment on an early day, and several important affairs were brought 
under consideration in the interval, which require our notice. 

The impeachment of Dr. Mainwaring was brought to a conclu- 
sion by the Lords, who passed sentence upon him — that he should 
be imprisoned during the pleasure of the house, be fined £1,000 to 
the king, should make submission at the bar of both houses, be 
suspended three years from the ministry, and be disabled from ever 
preaching at court, or holding any ecclesiastical dignity or secular 
office, and that all the offending books should be called in by pro- 
clamation, and burnt. He acknowledged his fault, and made sub- 
mission on his knees at the bar of the Commons, being led into the 
house by the warden of the Fleet Prison, to which he was 
committed. 

The Commons now complained of a commission of excise which 
the king had issued, appointing thirty-three of his counsellors to 
advise him how to raise money for the war — " the same to be done 
by impositions or otherwise, as in your wisdoms and best judgments 
ye shall find to be most convenient in a case of this inevitable 
necessity, wherein form and circumstance must be dispensed with, 
rather than the substance be lost or hazarded." After a conference 
with the Commons, the Lords appointed a special committee to 
draw up a message to advise the king to cancel the commission. 
The Commons sent to the lord keeper for the commission, which 
was sent and read to the house. This business terminated in the 
lord president of the council acquainting the Lords that the king 
had caused the commission to be cancelled in his presence. His 
lordship showed the cancelled commission to the house, and it was 
sent with a message to the Commons for their inspection. 

Tonnage and poundage had not yet been granted to the king, 
although he appears to have expected that an act, granting the 



PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 331 

duties for his life, would follow his assent to the Petition of Right. 
The Commons, however, proceeded to prepare a " remonstrance," to 
explain why the duties had not been granted to him before, and 
why it was necessary still to postpone the grant. They desired a 
previous admission from the king that tHe duties were not leviable 
by virtue of his prerogative, but of the voluntary grant of Parlia- 
ment ; and they attributed the delay which had occurred to the 
illegal conduct of King James in raising the duties above the legal 
rates, and to Charles's collection of the same illegal rates. They 
declared that the collection of the duties by Charles, without the 
authority of Parliament, was a fundamental breach of the liberties 
of the kingdom, and contrary to his answer to the Petition of 
Right ; and they besought him to forbe ;r further receiving them, 
and not to take it in ill part from those of his subjects who should 
refuse to make payment without warrant of law. 

The king, being informed of these proceedings, and alarmed for 
his tonnage and poundage, hurried to the House of Lords on the 
day fixed for the prorogation, several hours earlier than he was ex- 
pected, and prevented the presentation of the remonstrance by 
proroguing the Parliament. In his speech he said : " It may seem 
strange that I come so suddenly to end this session, therefore I 
will tell you the cause, though I owe the account of my actions to 
God alone. A while ago the House of Commons gave me a re- 
monstrance — how acceptable every man may judge. Now, I am 
well informed that a second remonstrance is preparing for me, to 
take away the profit of my tonnage and poundage, by alleging that 
I have given away my right thereto by my answer to your petition. 
This is so prejudicial to me that I am forced to end this session 
some few hours before I meant, being not willing to receive any 
more remonstrances, to which I must give a harsh answer. To 
prevent false constructions of what I have granted in your petition, 
I declare that I have granted no new, but only confirmed the 
ancient liberties of my subjects. . . . But as for tonnage and 
poundage, it is a thing I cannot want, and was never intended by 
you to ask, nor meant by me, I am sure, to grant." 

The speech was ordered by the king to be entered on the Com- 
mons' journals. The Bill of Subsidy was presented by the speaker, 



332 CHAELES I. 

with the remark " that it was the greatest gift that ever was given 
in so short a time." The royal assent was given to that and some 
other bills, and the Parliament was prorogued on the 20th of 
October. 

Before Parliament again assembled one great cause of discord 
was removed. The Duke of Buckingham was assassinated at Ports- 
mouth by one Felton, an officer, who, previously to the assassina- 
tion, sewed a paper within his hat, avowing that it was the Parlia- 
mentary remonstrance against the duke that had induced him to 
take him off as an enemy to the country. Buckingham was at the 
time engaged at Portsmouth in preparing a new expedition for the 
relief of the Protestants of Rochelle. In consequence of his death 
the expedition was committed to the conduct of the Earl of Lind- 
say. But it ended as unfortunately as the former expedition con- 
ducted by Buckingham. It was forced to surrender to the Catho- 
lic troops of Louis XIII., who entered the town on the 18th of 
October, and compelled the Protestants to submission. 

Parliament was again prorogued from the 20th of October to 
the 20th of January, on which day it assembled, and the Commons 
immediately reconstituted committees for privileges, religion, courts 
of justice, grievances, and trade. A case of extraordinary mean- 
ness on the part of the crown was communicated to the House of 
Commons by Sir John Elliot — that the Petition of Right had been 
printed by the Government for circulation amongst the people with 
the first and repudiated answer appended to it, instead of the sub- 
stituted legal answer. Mr. Selden reminded the house how the 
Petition of Bight had been violated since their last meeting — that 
the goods of Mr. Bolles, a member of the house, had been seized 
by the crown for the duties of tonnage, and that the Court of 
Exchequer had made an order commanding the sheriff not to 
execute a writ of replevin, issued with the view of trying the 
legality of the seizure, and restoring the goods in the mean time. 
He also referred with indignation to the case of Mr. Prynne, who 
had been deprived of his ears by sentence of the Star Chamber. 

The house entered upon the complaint of Mr. Holies, of the 
seizure of his goods for tonnage. Before the debate had proceeded 
far, a message was received from the king that he would speak with 



PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 333 

both houses on the following day (the 23d of January), in the ban- 
queting house at Whitehall ; and on their proceeding thither at the 
time appointed he made a speech explanatory of his former course 
in reference to the matter, which made it evident that he was now 
prepared to relinquish his claim of hereditary right to tonnage and 
poundage, if he could obtain a parliamentary grant; and this 
speech was followed by a bill, which Mr. Secretary Cook brought 
in for a grant of tonnage and poundage, and which he endeavored 
to induce the house to take into consideration. They gave priority 
to other business. The king pressed for priority of tonnage and 
poundage, in successive messages, and would have put the Commons 
completely in the wrong by fair speeches and propositions, if he 
had at the same time abstained from enforcing the ungranted 
duties. But whilst addressing the Commons, his officers were at the 
same time proceeding against some of the members. The house 
was irritated by an announcement from Mr. Holies that " since the 
last complaint of the breach of the liberties of the house, his house 
was locked up by one Massey, a pursuivant, and that yesterday he 
was called forth from the committee in the Exchequer Chamber, 
and served with a subpoena to appear in the Star Chamber." Al- 
though Mr. Holies announced at the same time that he had since 
received a letter from Mr. Attorney that it was a mistake, the 
house would not receive the explanation, but ordered that the mes- 
senger who served the subpoena should be summoned to attend the 
house, and it appointed a committee to see and examine the infor- 
mation in the Star Chamber, and to ascertain by whom the same 
was put in. The house took very decided measures in opposition to 
the king's proceedings to recover tonnage and poundage from the 
merchants; but their success proving at best but doubtful, they ad- 
journed. They met again on the 25th of February, when another 
scene of interest and excitement was presented. The house pro- 
ceeded to consider the articles to be insisted and agreed upon at a 
sub-committee for religion. The debate was interrupted by a mes- 
sage from the king, which the speaker announced, commanding 
him to adjourn the house '' until Tuesday come seven night follow- 
ing." It was objected that it was not the office of the speaker to 
deliver any such command ; for the adjournment of the house did 



334 CHARLES I. 

properly belong unto themselves ; and, after they had settled some 
things they thought convenient to be spoken of, they would satisfy 
the king. Sir John Elliot offered a remonstrance which he had 
prepared, addressed to the king, beseeching him to forbear any 
further recovery of tonnage and poundage ; but the speaker and the 
clerk refused to read it to the house ; and on the former being asked 
to put the question to the house, whether the remonstrance should 
be adopted, the speaker said " he was commanded otherwise by the 
king." -' If you will not put the question," said Mr. Selden, 
" which we command you, we must sit still ; and so we shall never 
be able to do anything. We sit here by command from the king 
under the great seal ; and as for you, you are, by his majesty, sit- 
ting in his royal chair before both houses, appointed our speaker. 
And do you refuse to be a speaker ? " The speaker justified his 
refusal by a command from the king to rise as soon as he had deliv- 
ered his message. He rose and left the chair, but was drawn into 
it again by Holies, Valentine, and others. He was held in the 
chair amidst the scorn and derision of the members, who, foreseeing 
that a dissolution would follow this outbreak, passed a protestation 
hastily prepared by Mr. Rolles, containing the following words : 

" Whoever shall counsel or advise the taking and levying of the 
subsidies of tonnage and poundage, not being granted by Parliament, 
or shall be an actor or instrument therein, shall be likewise reported 
an innovator on the government, and a capital enemy to this king- 
dom and commonwealth. 

" If any merchant, or other person whatsoever, shall voluntarily 
yield or pay the said subsidies of tonnage and poundage, not being 
granted by Parliament, he shall likewise be reputed a betrayer of 
the liberty of England, and an enemy to the same." 

When the protestation had been read and agreed to, the house 
rose, having protracted their sitting about two hours. In the mean 
time the king, hearing that their sitting was continued in disregard 
of his command for adjournment, endeavored to remove them. He 
first sent a messenger for the sergeant with his mace, that by 
removing it from the table an end might be put to the sitting. 
But the sergeant was detained, and the key of the door taken from 
him and given to a member to keep. The king next sent the usher 



PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 335 

of the black rod, as for a dissolution; but being informed that 
neither the usher nor his message would be received, he became 
enraged, and sent the captain of the pensioners, with his guard, 
with orders to force open the door. But before that extreme step 
could be taken, the house had risen and adjourned to the 10th of 
March. 

The king was now roused to violent action : he published a 
proclamation signifying his intention to dissolve the Parliament on 
account of the disobedient and seditious carriage of ill-affected 
persons of the House of Commons ; and he entered upon a course 
of relentless persecution of the unfortunate patriots. Without 
waiting for the actual dissolution, Sir John Elliot, Selden, Holies, 
Stodart, Hayman, Coriton, Long, Valentine, and Stroud were sum- 
moned before the privy council ; and, after having been questioned 
as to the parts they had respectively taken in preventing the speaker 
adjourning the house according to the king's command, they were 
committed to prison. The king's speech, when dissolving the Par- 
liament, manifested his anger and intemperance. He addressed 
the lords only, although many of the commons were at the bar. 
" He never came there," he said, u on so unpleasing an occasion, it 
being for the dissolution of the Parliament. Many may wonder 
why I did not rather choose to do this by commission, it being a 
general maxim of kings to lay harsh commands by their ministers, 
themselves only executing pleasing things. But I thought it ne- 
cessary to come here this day to declare to you, my lords, and all 
the world, that it was only the disobedient carriage of the lower 
house that hath caused this dissolution at this time ; and that you, 
my lords, are far from the causers of it. Nor do I lay the fault 
equally upon all the lower house ; for as I know there are many 
dutiful and loyal subjects there, so I know that it was only some 
vipers amongst them that had cast this mist of difference before 
their eyes." 

This was the third Parliament that the king had dissolved in 
anger within only four years. We may not hesitate to consider 
these dissolutions impolitic and abrupt, if Clarendon, the historian 
and apologist of Charles, has so viewed them. " The abrupt and 
unkind breaking off," says Lord Clarendon, " the two first Parlia- 



336 CHAEBES I. 

merits was wholly imputed to the Duke of Buckingham, and of the 
third, principally, to the Lord Weston, then lord high treasurer of 
England. No man," he observes, " can show me a source from 
whence those waters of bitterness, afterwards tasted, more probably 
flowed than from these unreasonable, unskilful, and precipitate dis- 
solutions, in which, by an unjust survey of the passion, insolence, 
and ambition of particular persons, the court measured the temper 
and affection of the country ; and by the same standard the people 
considered the honor, justice, and piety of the court; and so usu- 
ally parted, at those sad seasons, with no other respect and charity 
one towards the other than accompanies persons who never meant 
to meet but in their own defence, in which the king had always the 
disadvantage to harbor persons about him who, with their utmost 
industry, false information, and malice, improved the faults and 
infirmities of the court to the people ; and again, as much as in 
them lay, rendered the people suspected if not odious to the king." 

Charles followed up the dissolution of his third Parliament by 
publishing a declaration of the causes which moved him to dissolve 
it, and shortly afterwards by proclamation of unparalleled daring, 
in which he asserted absolute power over the Parliament and people. 
Referring to rumors spread by ill-disposed persons, he thought it 
expedient to make known his royal pleasure, that he did not purpose 
to overcharge his subjects by any new burden, but to satisfy himself 
with the duties received by his father, which he neither could nor 
would dispense with. And as to false rumors that he was about 
again to call a Parliament, he said that although he had showed, by 
his frequent meeting with his people, his love to th j use of Parlia- 
ment, yet the late abuse having, for the present, driven him out of 
that course, he should account it presumption for any to prescribe 
any time to him for Parliaments : the calling, continuing, and dis- 
solving them being always in the king's own power. He should be 
more inclinable to meet a Parliament again when his people should 
see more clearly into his intents and actions ; when such as had 
bred this interruption should receive their condign punishment ; and 
those that were misled by them and such ill reports, should come 
to a better understanding of him and themselves. 

Such a proclamation could only have been is< ued by a king 



PETITION OF EIGHT TO THE GRAND REMONSTRANCE. 337 

conscious of power and resolved to use it ; and could only have 
been received with silent acquiescence by a people who acknow- 
ledged that power, and their inability to resist it. The imprisoned 
patriots who had led the House of Commons could no longer 
stimulate the people nor resist the royal aggressions, whilst their 
imprisonment operated as a terror to those who were inclined to 
follow a patriotic cause. The subservience of the judges prevented 
any hope of stemming the kiug's will in the courts of law ; and the 
Parliament, the only arena for free discussion, was now denounced 
as a guilty institution, not to be called together again until it had 
learnt the lesson of submission. 

The proceedings against the members were continued with 
great oppression. The judges were questioned by the attorney- 
general, for the purpose of obtaining their private opinions as to 
the penal liability of the members in the courts of law, for their 
conduct in the House of Commons. Informations were insti- 
tuted against some of them in the ! tar Chamber, and against 
Sir John Elliot, Denzil Holies, and Benjamin Valentine, in the 
king's bench. Writs of habeas corpus having been issued to 
bring up the latter from the prison of the king's bench, they 
were, by the king's order, and to elude the judgment of the court, 
transferred to the Tower. They remained there through the long 
vacation, until November ; and being then brought up to the king's 
bench, the judges having previously conferred with the king, pro- 
nounced judgment that they ought to be bailed upon giving- secu- 
rity for their good behavior. A decision so contrary to the spirit 
and purpose of the writ of habeas corpus, and which implied a confes- 
sion of culpability without trial, could not be submitted to ; and 
the prisoners demanded to be bailed in point of right, and if not 
of right, they did not demand it. They were remanded to the 
Tower, and were required to plead to the information. They de- 
murred to the jurisdiction of the court, as being incompetent to 
try supposed offences done in Parliament, but the demurrer was 
overruled, and the prisoners persisting in their refusal to plead, 
sentence was pronounce against them. They were ordered to be 
imprisoned during the king's pleasure ; and not to be delivered 
until each gave security for his good behavior, and made submis- 
15 



338 CHARLES I. 

sion and acknowledgment of his offence. Sir John Elliot, inas- 
much as the court thought him the ringleader, was fined £2,000, 
Mr. Holies, 1,000 marks; and Mr. Valentine, £500. These 
patriotic men preferred imprisonment to the dishonor of acknowl- 
edging their conduct in Parliament to be an offence against the 
law ; and Sir John Elliot died in prison. 

It now appeared hopeless to contend against the power of the 
king ; and some, whose ardent patriotism seemed to promise no 
reward, were gained over to the king's party and accepted office 
under him. The king further strengthened his position by making 
peace first with France and afterwards with Spain ; and Lord 
Clarendon informs us that " there quickly followed so excellent a 
composure throughout the whole kingdom, that the like peace and 
plenty and universal tranquillity, for ten years, was never enjoyed 
by any nation." But all the principles of the constitution — the 
laws relating to taxation, and even the king's own proclamation that 
he would impose no new burdens — were disregarded. Tonnage 
and poundage were collected by order of the king's council. New 
and greater impositions were laid on trade. Obsolete laws were 
revived and vigorously executed. The ancient prerogative enjoyed 
by the crown of compelling its tenants in capite to take upon them 
the order of knighthood was revived ; and, notwithstanding a 
restraining statute of Edward II., proclamations were made in 
every county, summoning all men of full age seized of lands or rents 
of the annual value of £40 or more, not being knights, to appear 
personally in the king's presence before a certain day to receive the 
order and dignity of knighthood. If they made default they were 
subjected to grievous fines and vexations. Thus, says Lord Clar- 
endon, " the king received a vast sum of money from persons of 
quality, or of any reasonable condition, throughout the kingdom, 
by this expedient ; which, though it had a foundation in right, in 
the circumstances of proceeding was very grievous." 

Furthermore the oppressions of the ancient forest laws were 
restored. The ancient boundaries, which had been settled in the 
reign of Edward III., were by virtue of packed juries extended so as 
to include adjacent lands, and thus the attempt was made to set up 
new forests in many parts of the kingdom ; and the right thus 



PETITION OF EIGHT TO THE GRAND REMONSTRANCE. 339 

pretended to belong to the crown was only yielded to the rightful 
owners in consideration of heavy fines, or great annual rents. This 
burden," says Lord Clarendon, " lighted most upon persons of quality 
and honor, who thought themselves above ordinary impressions, 
and were therefore likely to remember it with more sharpness." 

But the most memorable of these unconstitutional and oppress- 
ive exactions was that of ship money. This was the invention of 
Noy, who had seceded from the popular party, and become the king's 
attorney-general. His investigation into old records led to the 
discovery that in ancient times, when danger of war arose, the sea- 
ports and maritime counties had been called upon to furnish ships 
for the protection of the kingdom ; and upon that basis he planned 
an expedient for raising a large and permanent revenue for the king. 
The first attempt was made in August, 1634, on the citizens of 
London; but we shall pass to the time (May, 1635) when the 
scheme, after the death of Noy, was extended by Lord Keeper Finch 
to the inland as well as the maritime counties of England and 
Wales — and especially to that instance which has rendered the 
name of John Hampden immortal in the annals of the country. 

By the plan put in force, writs were issued under the great seal 
to the sheriffs of all the English and Welsh counties, directing that 
each county should provide ships of various burden ; but which, in 
the instance of the county of Bucks, in which Hampden resided, 
was a ship of war of 450 tons, with 180 men, guns, gunpowder, 
double tackling, victuals, and all other things necessary. It was 
ordered that she should be brought to Portsmouth on a day named ; 
and from that time, that the county should furnish also victuals 
and mariner's wages and all other necessaries for twenty-six weeks. 
But as it was never intended that an actual ship should be pro- 
vided, the sheriff was further commanded, with the aid of the mayors 
and bailiffs of the several cities and boroughs within his county, to 
assess the requisite money on the several boroughs and freeholders 
of the county ; and to return the assessment, with the names of the 
persons charged, in a schedule to the writ. If payment were not 
voluntarily made by the party assessed, compulsory process was to 
be issued to enforce it. 

The levy, however obnoxious, had been continued annually for 



340 CHARLES I. 

four years, producing a revenue of £200,000 a year, when public 
opinion set strongly against its legality. An attempt was made to 
* fortify it by the opinions of the judges. They were summoned to 
the Star Chamber in March, 1636, where a case and question were 
put into their hands, signed by the king and enclosed in a regal 
letter. The judges gave their unanimous opinion in affirmation of 
the question put to them — that, " when the good and safety of the 
kingdom in general is concerned and the whole kingdom in danger, 
your majesty may by writ under the great seal of England, com- 
mand all your subjects, at their charge, to provide and furnish such 
number of ships, with men, munition, and victuals, and for such time 
as you shall think fit, for the defence and safeguard of the kingdom 
from such danger and peril ; and that by law you may compel the 
doing thereof in case of refusal or refractoriness. And we are also 
of opinion that your majesty is the sole judge both of the danger, 
and when and how the same is to be prevented and avoided." This 
opinion became celebrated as an " extra-judicial opinion ; " and Lord 
Keeper Finch signified the king's command that it should be entered 
in all the courts of Westminster, and that the judges should publish 
it through all their circuits ; and he inflicted the keenest rebuke of 
the baseness and subserviency of the judges, by congratulating them 
that the king had descended to communicate with them. 

The king and his ministers, having secured the judges, could 
proceed with confidence to put down opposition. Writs of scire 
facias were issued against the defaulters in the county of Bucks, 
requiring them to pay the money or to appear in court and show 
cause against the demand ; and the sheriff returned " that he had 
made it known (quod sciri fecit) to John Hampden Esq., who was 
assessed at 20 shillings, and he hath not paid it." 

Hampden justified his refusal of payment, and raised the ques- 
tion of the right of the crown, by a demurrer to the writ of scire 
facias, which put at issue the law the writ was issued to enforce. 
The case was argued before the twelve judges in the court of Exche- 
quer Chamber, in April, 1638. The argument occupied twelve days. 
All the old laws and authorities were cited, which showed that the 
subject could not be taxed without the consent of Parliament, and 
finally the confirmation of those laws by the Petition of Right 



PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 341 

But a majority of the judges, four dissenting, pronounced judg- 
ment in favor of the crown — that the writs were sufficient 
in law to charge Mr. Hampden with the twenty shillings assessed 
upon him. 

Upwards of eleven years now passed before a Parliament was 
assembled ; a period during which, if we may believe Lord Clarendon, 
England enjoyed the highest material prosperity ; but during which 
it is also certain that the liberties of the people were defied, and 
the prerogative of the crown strained to the utmost. 

FOURTH (THE SHORT) PARLIAMENT. 

At length the king's necessities compelled him to summon a 
Parliament, when, immediately on their assembling, petitions, repre- 
senting grievances, were presented from several English couuties ; 
and they led to a debate in which the unconstitutional proceedings 
of the Government, during the long discontinuance of Parliament, 
were reviewed. This was followed by an inquiry into the circum- 
stances connected with the dissolution of the last Parliament. A 
resolution was passed that the refusal of the speaker to put the 
question, by a verbal command from his majesty, was a breach of 
privilege ; and warrants were issued, signed by the speaker, requir- 
ing that the records and proceedings of the court of Exchequer, con- 
cerning ship money, should be produced by the officers of that court. 

These steps indicating the course the Commons were taking, 
Charles made another effort to call their attention to his supplies 
Sir Henry Vane delivered a message from the king to the house, 
that it was his pleasure they should attend him, on the 21st of 
April, at Whitehall; where the Lords and Commons being assembled 
in the king's presence, Lord Keeper Finch addressed them. 

" Such are his majesty's occasions," he said, " that if the supply 
be not speedy, it will be of no use ; for the army is now marching, 
and stands at least £100,000 a month. The king doth not expect 
a great and ample supply for perfecting the work, but only such as 
without which the charge would be lost and the design frustrated. 
That done, you may present your grievances to him, and he will 
hear them with a gracious ear. Concerning ship money, his majesty 



342 CHARLES I. 

never had it in his royal heart to make an annual revenue of it, nor 
to make the least benefit or profit of it, but what he did or intended 
was for the honor and glory of the nation ; and the accounts of such 
moneys so received have been brought to the council table, and the 
moneys delivered to the treasurer of the navy. His majesty cannot 
this year forbear the writs for ship money, because they had gone out 
before it was possible that Parliament could grant supply ; but he ex- 
pects your concurrence in the levying it for the future. It will com- 
fort every English heart to know that his majesty hath no thoughts of 
enriching himself by these writs : he doth desire but to live as it 
behooves a king of England, and as every true English heart desireth." 

These fair promises and gracious explanations did not avert 
the Commons from their course. They admitted the great ur- 
gency of the occasion : " Necessity is come upon us like an armed 
man. Let us not stand too nicely upon circumstances ; let us do 
what may be done with reason and honesty on our part to comply 
with the king's desires. « But let us first give new force to the old 
laws for maintaining our rights and privileges, and endeavor to 
restore this nation to its fundamental and vital liberties — the 
property of our goods, and the freedom of our persons. The kings 
of this nation have always governed by Parliaments ; but now divines 
would persuade us that a monarch must be absolute, and that he 
may do all things ad libitum. Since they are so ready to let loose 
the conscience of the king, to enterprise the change of a long-estab- 
lished government, we are the more carefully to provide for our 
protection against this pulpit law, by declaring and reenforcing the 
municipal laws of the kingdom. The first thing this house should 
consider of, should be the restoring to the nation their fundamental 
and vital liberties, and then to consider of the supply desired." 

A Parliament thus begun under Charles I. could not be expected 
to be very long continued, and it was dissolved by the king's com- 
mand after an existence of but three weeks. Those who composed 
it were by no means men of distempered minds, or desirous of 
revolution. They were fully disposed to supply the king's necessi- 
ties, but they were no less determined to maintain their own rights 
and their country's liberty. 

Yet the sudden dissolution created great surprise. " There 



PETITION OF EIGHT TO THE GRAND REMONSTRANCE. 343 

could not,'' says Lord Clarendon, rt a greater damp have seized upon 
the spirits of the nation than this dissolution caused, and men had 
much of the misery in view which shortly after fell out. It could 
never be hoped that more sober and dispassionate men would ever 
meet together in that place, or fewer who brought ill purposes with 
them; nor could any man imagine what offence they had given, 
which put the king upon that resolution. " 

FIFTH (THE LONG) PARLIAMENT. 

Lord Clarendon informs us that, within an hour after the dis- 
solving of the last Parliament, meeting Mr. St. John, who was sel- 
dom known to smile, with a most cheerful aspect, while he himself 
appeared melancholic, as in truth he was, Mr. St. John asked 
him what troubled him. He answered that " in such a time of 
confusion, so wise a Parliament, which alone could have found reme- 
dy for it, was so unreasonably dismissed." The other answered 
that " all was well, and that it must be worse before it could be 
better ; " a prophecy founded on a sound view of the incompetency 
of the king to contend with his adversaries, and of the increasing 
difficulty of his affairs. Certainly the king made nothing by the 
change of the Short Parliament for that which his necessities and 
the confusions of the kingdom forced him six months afterwards to 
summon. The latter is known as the Long Parliament, by whose 
order he was ultimately executed. From the first it was opposed to 
him. The king had designed that Sir Thomas Gardiner, recorder 
of London, should be elected speaker of the Commons ; and it was 
not doubted that he could have been chosen to one of the four seats 
of the city of London. But the citizens exerted themselves so 
much in opposition to the court, that the recorder was rejected in 
the city ; and through the influence of the citizens, and the prevalence 
of feelings inimical to the court, he was not elected elsewhere. A 
large portion of the members of the last Parliament were returned 
to this, including all the Puritan leaders. " There was observed," 
says Clarendon, " a marvellous elated countenance in most of the 
members of Parliament before they met in the house. The same 
men who six months before were observed to be of very moderate 



344 CHAELES I. 

tempers, and to wish that gentle remedies might be applied, without 
opening the wound, too wide and exposing it to the air — and rather 
to cure what was amiss than too strictly to make inquisition into 
the causes and original of the malady— talked now in another dialect 
both of things and persons." 

The Lords were animated by the same feelings as the Commons, in 
whose proceedings they were usually ready to cooperate. They 
began the work of punishment by summoning Sir William Beecher 
to the bar of their house, to answer by what warrant or direction he 
had searched the pockets and houses, and carried away the papers 
of Lord Brooke and the Earl of Warwick after the last Parliament, 
and before the expiration of the parliamentary privilege. He justi- 
fied himself as clerk of the privy council, bound to execute their 
warrants ; and he puzzled the Lords by allowing them to infer that 
he had acted under the king's direct sanction. But he afterwards 
confessed that the warrants were signed by the two secretaries of 
state ; and on his humble petition and confession of his error, the 
Lords released him from imprisonment. 

The Commons commenced a long series of impeachments, and 
having adopted a resolution to accuse Thomas, Lord Wentworth, 
earl of Strafford, lord lieutenant of Ireland, of high treason, they 
sent Mr. Pym with a message to the Lords to desire that Lord 
Strafford might be sequestered from Parliament and committed — 
a desire which was complied with by the Lords. They did not, how- 
ever, neglect the king's necessities ; for in a few days afterwards, 
they voted him a supply of £100,000. Ship money was referred to 
a committee, to inquire into its legality. Upon their report being 
made to the house, it was resolved, nullo contradicente, " that the 
charge imposed upon the subjects for providing and furnishing of 
ships, and the assessment and raising of money for that purpose, 
commonly called ship money; the extra-judicial opinions of the 
judges, published in the Star Chamber, and enrolled in the courts 
of Westminster ; the writs commonly called ship writs ; and the 
judgment in the exchequer on Mr. Hampden's case — were, severally, 
against the laws of the realm, the right of property, and the liberty 
of the subject, contrary to former resolutions of Parliament, and to 
the Petition of Bight." The Lords on a subsequent day passed simi- 



PETITION OF EIGHT TO THE GRAND REMONSTRANCE. 345 

lar resolutions, declaring the illegality of ship money, and the 
proceedings connected with it. 

The Commons next visited their own house with punishment, by 
excluding four members, for being monopolists and patentees, from 
sitting iu Parliament. 

The king, compelled to submit to all these proceedings, was now 
thoroughly humbled, and we presently find leaders of the Commons 
admitted to high offices under the crown; and whatever advantage, 
present or prospective, was expected from these accessions, it is 
from this period that we have to note the submission of Charles to 
the demands of the Parliament, and the rapid descent of his execu- 
tive power. He acceded to a request of both houses for an altera- 
tion in the tenure of the judges' appointments — that for the future 
the clause quamdiuse bene gesserint might be inserted in their patents, 
instead of durante bene placito, that is, during good behavior instead 
of during the king's pleasure. He next passed the act for triennial 
parliaments, framed on the principle deprecated in his speech ; the 
title of which is, " An Act for the Preventing Inconveniences 
happening by the long intermission of Parliament." Although its 
chief provisions were repealed by Charles II., it is so remarkable 
an event in the history of the constitution that we must briefly 
notice its contents. Its foundation is the ancient law that Parlia- 
ment ought to be holden at least once every year for redress of 
grievances. It provided that if Parliament were not summoned and 
assembled before the 3d of September, in every third year, then 
a Parliament should assemble on the second Monday in November 
ensuing. The lord chancellor was required to take an oath to issue 
the writs in due time ; and in his default the peers should meet, and 
any twelve or more should issue the writs. In case of their default, 
the sheriffs, mayors, and bailiffs should cause elections to be made ; 
and lastly, in their default, the freeholders, citizens, and burgesses 
should proceed to election. The Parliament should not be dissolved 
or prorogued within fifty days after the time appointed for their 
meeting ; nor adjourned within fifty days, but by consent of either 
house respectively. 

He subsequently passed another act to prevent inconveniences 
which may happen by the untimely adjourning, proroguing, or 
15* 



346 CHAELES I. 

dissolving this present Parliament. It enacted that the Parliament 
should not be dissolved, nor prorogued or adjourned, unless by an 
act of Parliament to be passed for the purpose ; and that neither the 
House of Peers nor the House of Commons should be adjourned, 
unless by themselves, or their own order. This act, in rendering 
Parliament indissoluble but by their own act, contravened a funda- 
mental principle of the constitution, and whilst it superseded the 
executive authority of the crown, it also took away the elective 
rights of the people. The king, however, passed it. 

Charles next yielded the contest respecting tonnage and pound- 
age, by passing an act granting him those duties for less than 
two months, which he had claimed for his life. It declared illegal 
the right for which he had so long contended, by reciting that the 
duties had been collected against the laws of the realm, in regard 
that they had not been granted by Parliament, and that the 
farmers, customers, and collectors had received condign punishment, 
and it declared that " it is and had been the ancient right of the 
subjects of this realm that no subsidy, custom, impost, or other 
charge whatsoever, might or may be laid or imposed upon any 
merchandise, exported or imported, by subjects, denizens, or aliens, 
without common consent in Parliament." Charles must have felt 
humbled when, by accepting and passing that bill, he gave up his 
claim, constantly insisted upon since his first Parliament. When 
passing it, he said, in answer to the speaker, " You cannot but 
know that I do freely and frankly give over that right which my 
predecessors have esteemed their own — though I confess disputed, 
yet so that it was never yielded by any one of them. Therefore 
you must understand this as a mark of my confidence in you thus to 
put myself wholly upon the love and affections of my people for my 
subsistence." Charles was next called upon to give his royal assent 
to two acts for abolishing the court of Star Chamber and the High 
Commission Court. He postponed his assent to these bills until, as 
he said, he had time to consider them .; and in consequence some 
discontent arose, which he alluded to in his speech when he after- 
wards gave the royal assent : " Methinks it seems strange that any 
one should think I could pass two bills of such importance as these 
without taking some fit time to consider them ; for it is no less than 



PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 347 

to alter, in a great measure, those fundamental laws, ecclesiastical 
and civil, which many of my predecessors have established. 

" If you consider (he proceeded) what I have done in this Par- 
liament, discontent will not sit in your hearts. I hope you remem- 
ber I have granted that the judges hereafter shall hold their places 
quamdiu bene se gesserint. I have bounded the forest, not accord- 
ing to my right, but according to the late customs. I have estab- 
lished the property of the subjects, as witness the free giving up— 
not the taking away — the ship money. I have established by act 
of Parliament the property of the subject in tonnage and poundage, 
which never was done in any of my predecessors' times. I have 
granted a law for a triennial Parliament ; and given way to an act 
for the securing of moneys advanced for the disbanding of the armies. 
I have given free course of justice against delinquents. I have put 
the laws in execution against papists. . . . 

" For my part I shall omit nothing that may give you just con- 
tentment, and study nothing more than your happiness ; and there- 
fore I hope you shall see a very good testimony of it by passing 
these two bills." 

The king had called these laws fundamental. The courts which 
they abolished had been so long used to oppress the subject, by the 
Tudors as well as the Stuarts, that their abolition was the greatest 
blow that had yet been given to irresponsible power. The constitu- 
tional effect of their abolition was the transfer of all accusations and 
complaints against the subject from the Star Chamber and Sigh Commis- 
sion Courts to the courts of common laiv, there to be tried openly by a 
jury, according to the law of the land. 

The first of these acts is called " An Act for the Regulating of the 
Privy Council, and for taking away the court commonly called the 
Star Chamber." It begins with a recital of Magna Charta, and its 
train of statutes for protecting the liberty of the subject, and refers 
to the statutes of Henry VII. and of Henry VIII., by the former 
of which the Star Chamber was established, or at least moulded into 
a new form ; and it declares that the judges had not kept themselves 
within the limits of the statute of Henry VII. ; but had under- 
taken to punish where no law did warrant, and to make decrees for 
things having no such authority, and to inflict heavier punishments 



348 CHAELES I. 

than by any law was warranted. "And forasmuch (it proceeds) 
as all matters examinable or determinable in the court of Star 
Chamber may have their proper remedy and redress, and their due 
punishment and correction by the common law of the land, and in the 
ordinary courts of Justice ; and the proceedings, censures, and decrees 
of thai court have been found to he an intolerable burden to the subject 
and the means to introduce an arbitrary power and government ; and 
forasmuch as the council table hath of late times assumed a. power 
to intermeddle in civil causes between party and party, and to de- 
termine of the estates and liberties of the subjects, contrary to the 
law of the land ; it ordained that the court, commonly called the 
Star Chamber, should be absolutely dissolved, taken away, and de- 
termined." 

The other act is called "A Repeal of a Branch of Statute, primo 
Elizabeths, concerning Commissioners for Causes Ecclesiastical." It 
recites the act, and the clause contained in it, by which Queen Eliz- 
abeth established the High Commission Court, and that the commis- 
sioners had to the great and insufferable wrong and oppression of 
the king's subjects, used to fine and imprison them ; and, therefore, 
the branch of the statute on which the court was based was repealed 
and made void ; and persons exercising spiritual or ecclesiastical 
power by authority derived from the king to inflict fine, imprison- 
ment, or corporal punishment, were deprived of that power. 

Charles next conceded the illegality of his proceedings in re- 
gard to ship money, the enlargment of forests, and the fines on the 
refusal of knighthood ; and extinguished his claims by giving the 
royal assent to acts for abolishing them. 

The " Act for the declaring unlawful and void the late proceed- 
ings touching ship money, and for the vacating of all records and 
process concerning the same," declared and enacted that the charge 
imposed upon the subject for the providing and furnishing of ships, 
commonly called ship money, and the extra-judicial opinions of the 
justices and barons, and the writs and the judgment against John 
Hampden, were contrary to the laws and statutes of this realm, the 
right of property, the liberty of the subject, former resolutions in 
Parliament, and the Petition of Right. 

The " Act for the certainty of forests and of the meets, meers 



PETITION OF EIGHT TO THE GRAND REMONSTRANCE. 349 

limits, and bounds of the forest," declared that the limits and bounds 
of the forests should extend no farther than those reputed and taken 
in the twentieth year of King James ; and that all presentments to 
the contrary should be void. 

The " Act for the prevention of vexatious proceedings touching 
the order of knighthood," declared and enacted that thenceforth no 
person, of what condition, quality, estate, or degree soever, should 
be distrained or compelled by any means to take upon him the 
order or dignity of knighthood ; nor suffer or undergo any fine, 
trouble or molestation, for not having taken on him such order or 
dignity. 

We may here pause to consider the effect of this extensive legis- 
lation on the power of the crown. It abolished the principal in- 
struments of tyranny employed by the Tudors, and afterwards by 
the Stuart monarchs. It declared illegal the expedients to which 
Charles had resorted to raise money in the absence of Parliament ; 
and it put an end to his long-cherished claim, on the ground of 
hereditary right, to enjoy tonnage and poundage for his life; giving 
him in succession grants of that revenue for short periods of weeks 
or months. The most eminent and powerful of his ministers was 
attainted and put to death. It was made impossible for him to re- 
sist the meeting of Parliament once in three years, and its con- 
tinuance in session for at least fifty days ; while he conferred on the 
Parliament then existing the prerogative, never before separated 
from the crown, of continuing or dissolving itself at its will and 
pleasure. But excepting the latter, which was undoubtedly an un- 
constitutional interference with the prerogative of the crown, these 
changes were a just concession to the rights and liberties of the 
people ; and we may also have observed that the speeches in which 
Charles gave his royal assent to these acts, have none of the defiance 
and vituperation of his speeches to previous Parliaments, and rather 
breathe the courteous acquiescence, if they do not also exceed the 
submission, of a constitutional king. 

These concessions were deemed by many a sufficient surrender 
of the royal power ; and Mr. Hyde, Lord Falkland, and others of 
the popular party, declared in Parliament their disapproval of 
further demands. After passing the acts, the king went to Scot- 



350 CHAELES I. 

land, where Scotch affairs required his presence ; and on his return 
the popular feeling had changed so much in his favor, that he made 
a public entry into London, where " he was received with all im- 
aginary expressions and demonstrations of affection and grandeur." 
The recorder was warm in his praises and congratulations. He 
could truly say from the representative body of the city, from 
whence he had his warrant, that they met his majesty with as much 
love and affection as ever citizens of London met his royal progeni- 
tors ; and he added, that these expressions of joy, of love, of loyalty 
he met with everywhere from the citizens of London. The king 
answered that he returned with as hearty and kind affections to his 
people in general, and to the city in particular, as could be desired by 
his loving subjects ; the first he should express by governing them all 
according to the laws of the kingdom, and in maintaining and pro- 
tecting the true Protestant religion. In auswer to another petition 
of the city that he would winter at Whitehall, he said that al- 
though he had proposed to winter at Hampton Court, he should 
alter his resolution, and with all convenient speed repair to White- 
hall. The king afterwards, in a speech to Parliament, referred to 
his reception, " not being in doubt," he said, " that his subjects' af- 
fections were any way lessened to him in the time of his absence ; 
for he could not but remember, to his great comfort, the joyful re- 
ception he had at his entry into London. 

Would that we could here end the tale, for England in 
throwing off the royal yoke was fast becoming subject to an 
influence not less mischievous — Puritanism. A spirit more ar- 
bitrary than monarchy now controlled the Commons, and from the 
hour of its complete ascendency we read but of confusion, blood- 
shed, civil war, and by and by the worse than imperial despotism 
which reached its incarnation in a Cromwell. The affairs of 
England never had been — never have been in a happier or more 
hopeful state than at the period we have now reached; and to 
the restless, meddling fiend of Puritanism in its next act, we 
must trace the woful tragedy which ended the unhappy reign of 
the first Charles. 



CHAPTER X. 

CHARLES I.— THE REIGN OF PURITANISM— FROM THE GRAND RE- 
MONSTRANCE TO THE END OF CONSTITUTIONAL 
LEGISLATION UNDER CHARLES. 

THE GRAND REMONSTRANCE CARRIED BY A PURITAN MAJORITY OF ELEVEN — SAYING 

OF CROMWELL DIFFERENT OPINIONS CONCERNING THE REMONSTRANCE — ITS 

FUTILITY SKETCH OF ITS CONTENTS — OBJECT AND DETERMINATION OF THE 

PURITANS THEIR EXASPERATION OF THE KING ROYAL IMPEACHMENT AND IM- 
PRISONMENT OF LORD KIMBOTTON AND THE FIVE MEMBERS — DECLARATION OF 
THE COMMONS — RETURN OF THE FIVE MEMBERS — SEPARATION OF KING AND PAR- 
LIAMENT — HIS EFFORTS AT A RECONCILIATION IMPLACABILITY OF THE PURI- 
TANS — BISHOPS REMOVED FROM PARLIAMENT THE " ROOT AND BRANCH BILL " 

ABOLITION — MILITIA BILL THE KING REFUSES HIS ASSENT MESSAGE TO THE 

KING FROM PARLIAMENT HIS ANSWER GENERAL REVIEW PURITAN DESPOT- 
ISM CROMWELL. 

Shortly before the king's return, the Commons passed 
through their house a " Declaration of the State of the King- 
dom," which, as it has acquired historical celebrity as the " Grand 
Remonstrance," requires our notice. It was the work of the 
Puritan members of the house, being objected to and opposed 
by the others as unparliamentary and inexpedient : — unparlia- 
mentary, as being an appeal to the people concerning the gov- 
ernment and conduct of the king, and as the work of one only 
of the constituent bodies of Parliament; inexpedient, as a detail 
of grievances already redressed. The draft was prepared by a 
committee, and laid before the house early in November; and 
after much opposition, a day was fixed for taking it into con- 
sideration, clause by clause, by the whole house, the speaker 
in the chair. The debate commenced at three o'clock in the 
afternoon, and was continued until three o'clock on the follow- 



352 CHARLES I. 

ing morning ; when, the question being put, whether the declara- 
tion as amended should pass, it was carried in the affirmative 
by a majority of 159 to 148, that is, by a majority of eleven ; but 
a motion that it should be printed, terminated in a resolution that 
it should not be printed without the particular order of the house. 
The debate produced great passion and vehemence ; and the excite- 
ment is made evident by a saying of Oliver Cromwell, who told 
Lord Falkland, as they went out of the house after the debate, that 
" if the Remonstrance had been rejected, he would have sold 
all he had the next morning, and never have seen England 
more ; and he knew there were several other honest men of the 
same resolution." 

This remonstrance has been considered under different aspects 
by historians. Forster, the great advocate of Puritanism, would 
have us think that it " was an appeal to the people, rendered 
necessary by the falsehood and unfaithfulness of the king to 
all his engagements, in order to bring about a lasting adjustment 
of right relations between the Commons and the crown." Mr. 
Hallam considers that " it was put forward to stem the returning 
tide of loyalty, which not only threatened to obstruct the fur- 
ther progress of the popular leaders, but, as they would allege, 
might, by gaining strength, wash away some at least of the 
bulwarks that had been so recently constructed for the preserva- 
tion of liberty." We must, however, agree with Hume, who 
characterizes it " as containing many gross falsehoods, inter- 
mingled with some evident truth." and calls it "a plain signal 
for further attacks on the royal prerogative; and a declara- 
tion that the concessions already made, however important, were 
not to be regarded as satisfactory ; " adding that " nothing less 
was foreseen, whatever ancient names might be preserved, than 
an abolition almost total " of the constitutional government of 
England. The Remonstrance admits that the grievances and oppres- 
sions it portrayed had already been removed — " the difficulties seemed 
to be insuperable which, by the Divine Providence, we have 
overcome." It specifies large sums of money that had been 
raised, "and yet God hath so blessed the endeavors of this 
Parliament, that the kingdom is a great gainer by all these charges. 11 



THE REIGN OF PURITANISM. 353 

" The ship money is abolished, which cost this kingdom above 
£200,000 a year. The coat and conduct money and other military 
charges are taken away, which, in many counties, amounted to little 
less than the ship money. The monopolies are all suppressed, whereof 
some few did prejudice the subject above a million yearly; the 
soap, £100,000 ; the wine, £300,000 ; the leather must needs exceed 
both, and salt could be no less than that; besides the inferior 
monopolies, which if they could be exactly computed, would make 
up a great sum." It admits that the Icing 's power of evil was 
taken away. " That which is more beneficial than all this is, the 
root of these evils is taken away ; which was the arbitrary power 
pretended to le in his majesty, of taxing his subjects, or charg- 
ing their estates, without consent of Parliament, which is now 
declared to be against law, by the judgment of both houses, and 
also by an act of Parliament." 

It reviews the advantages which had resulted from the im- 
peachments and the several new laws. By the former, " the 
living grievances, the evil counsellors and actors of these mis- 
chiefs, have been so quelled, that it is likely not only to be an 
ease to the present time, but a preservation to the future." 
Among the latter are named the Triennial Act and the Act to 
prevent the abrupt dissolution of Parliament, which "secure a full 
operation of the present remedy and afford a perpetual spring of 
remedies for the future." " The Star Chamber, the High Com- 
mission, the courts of president and council in the North, the 
immoderate power of the council table, are all taken away ; 
the canons and the power of canon making are blasted by the 
vote of both houses ; the forests are by a good law reduced to their 
right bounds ; and other things of main importance for the good of 
this kingdom are in proposition. The malignants " — In this word 
" malignants " the essential venom of Puritanism already spurts 
out on its opponents. The Puritans had succeeded in obtain- 
ing a majority of eleven in the House of Commons, and already 
all opposed to them are to be described as malignants ! But 
to continue — " The malignants have endeavored to work on 
his majesty ill impressions and opinions of our proceedings, 
as if we had altogether done our own work and not his, and 



354 CHAELES I. 

had obtained from him many things very prejudicial to the 
crown, both in respect of prerogative and profit. To wipe out 
the first part of this slander, we think good only to say that 
all we have done is for his majesty, his greatness, honor and 

support As to the second branch of this slander, we 

acknowledge with much thankfulness that his majesty hath passed 
more good bills to the advantage of his subjects than have been 
in many ages." 

Having thus fully demonstrated that it is itself a mere bru- 
tum fulmen of fanaticism, wholly unnecessary in the circumstances 
of the nation, the Remonstrance next proceeds to declare the 
reformation in view: "And now what hope have we but in God; 
when the only means of our subsistence and power of reforma- 
tion is, under Him, in the Parliament ? But what can we, the 
Commons, do, without the conjunction of the House of Lords ? 
and what conjunction can we expect there, where the bishops 
and recusant lords are so numerous and prevalent, that they are 
able to cross and interrupt our best endeavors for reformation, 
and by that means, give advantage to this malignant party to 
traduce our proceedings ? . . . . We confess our intention is 
and our endeavors have been, to reduce within bounds that 
exorbitant power which the prelates have assumed unto them- 
selves, so contrary both to the word of God, and the laws of the 
land ; to which end we have passed the bill for the removing 
them from their temporal power and employments, that so the 
better they might with meekness apply themselves to the dis- 
charge of their functions ; which bill themselves opposed, and 
were the principal instruments of crossing it." They then de- 
clare their own views of discipline and government of the Church ; 
and desire a general synod of divines, the results of whose con- 
sultations should be represented to the Parliament, to be there 
allowed of and confirmed, and receive the stamp of authority. 
They deny the charge maliciously made, that they intend to 
destroy and discourage learning, declaring that they " intend to 
reform and purge the fountains of learning, the two Universi- 
ties ; that the streams flowing from them may be clear and 
pure, and an honor and comfort to the whole land." 



THE EEIGX OF PURITAOTSM. 355 

The malignants tell the people, "that our meddling with the 
power of episcopacy hath caused sectaries and conventicles . . thus 
with Elijah we are called by this malignant party, the troublers of 
the state ; and still, while we endeavor to reform their abuses, they 
make us the authors of those mischiefs we study to prevent." The 
pharisaical hypocrisy of these pretences would be sublime in any 
but the Puritans. With them it was, and always has been, custom- 
ary. 

They finally state the courses for perfecting the work begun, 
and removing all future impediments, under five heads : 

1. To keep Papists in such condition as that they may not be 
able to do us any hurt ; and for avoiding such connivance and 
favor as heretofore hath been shown to them, that his majesty 
be pleased to grant a commission to some choice men named in Par- 
liament, who may take notice of their increase, their counsels, and 
proceedings ; and use all due means, by execution of the laws, to 
prevent any mischievous designs against the peace and safety of the 
kingdom. 2. That some good course be taken to discover the false 
conformity of Papists to the Church, whereby they have been admit- 
ted to places of trust. 3. That all illegal grievances and exactions 
be presented and punished at the sessions and assizes ; and that 
judges and justices be sworn to the due execution of the Petition 
of Right and other laws. 4. That his majesty be humbly petitioned, 
by both houses, to employ such councillors, ambassadors, and min- 
isters as the Parliament may have cause to confide in, without which 
we cannot give his majesty such supplies as is desired. 5. That all 
councillors of state may be sworn to observe the laws which con- 
cern the subject in his liberty; not to receive, or give, reward or 
pension, to or from any foreign prince ; that all good courses may 
be taken to unite the two kingdoms of England and Scotland ; to 
take away all differences among ourselves for matters indifferent 
concerning religion, and to unite ourselves against the common ene- 
mies, and to labor, by all offices of friendship, to unite the foreign 
churches with us, in the same cause." u If these things," it con- 
cludes, " may be observed, we doubt not but God will crown this 
Parliament with such success as shall be the beginning and founda- 



356 CHARLES I. 

tion of more honor and happiness to his majesty than was ever yet 
enjoyed by one of his royal predecessors." 

Such is the Grand Remonstrance, and it must, by all but Puri- 
tans, be confessed that it is difficult to determine from what motive 
it proceeded, or what object it had in view. Historians have in 
general considered it as possessing no constitutional value ; it is not 
addressed to any great principle then in danger or in doubt, and a 
document so lengthy and pretending, ends in a lame and impotent 
conclusion, when it propounds amongst the remedies for bad govern- 
ment — and those the most prominent — increased vigilance towards 
Papists, and a more extended union of Protestants against them. 
Viewing it as a remonstrance of the House of Commons against the 
tyranny or illegal government of the king, it loses its effect by the 
confession that the grievances complained of had been fully re- 
dressed, and that the king's power of evil was taken away ; and it is 
not to be compared, in that respect, with the bold remonstrances of 
the Commons to James — or even to those in the early part of this 
reign, when Charles was in the plenitude of his prerogative — defy- 
ing the power, and daring the punishments the kings were then able 
and willing to inflict. If we view it as a measure rendered neces- 
sary to insure faithfulness of the king (for which there is no author- 
ity in the tenor or terms of the Remonstrance), we object that 
the king had surrendered by acts of Parliament the prerogatives 
which he had assumed, and by which he had illegally oppressed his 
people ; and had thus given the highest security known to the con- 
stitution, for the abandonment of his assumed prerogatives ; and that 
therefore an appeal to the people in anticipation of his future mis- 
conduct, was not only ungracious, but insulting. But the true view 
of it is that the Remonstrance was intended to aid the design of re- 
moving from Parliament the bishops and those lords whom it so 
strongly denounced as the obstacles to Puritanism. The removal of 
the bishops, in order to obtain the control spiritual as well as tem- 
poral of the kingdom, was the great object of the Puritan party • 
the intention to remove them is confessed in the remonstrance ; but 
it was almost the only point in which they could not get the con- 
currence of the king and the Lords. It was accomplished, however, 
within a few months after the Remonstrance ; and if we consider 



THE REIGN OF PURITANISM. 357 

the power of ambitious and self-righteous fauaticism when striving 
for ascendency, and how strongly it governed the actions of the 
Puritans in Parliament, it will perhaps be felt that this, and this 
only, in the then subdued condition of the king, fired the energies 
of these fanatics to the frenzy which the debate produced ; and that 
this is amply adequate to explain the resolution of Cromwell (as 
the same motives animated the so-called Pilgrim Fathers) to sell all 
he possessed and leave the country, if the Remonstrance had not 
been carried. 

We now pass to another phase in Charles's eventful life, when, 
driven by exasperation to relinquish all his compliant submission to 
the Commons, and losing sight of his pledged regard to their privi- 
leges, he entered into a personal contest with them. The attempt- 
ed seizure of the five members, one of the most ominous passages of 
English history, is referred to. Since the Grand Remonstrance, 
several subjects of dispute and irritation (sedulously stirred up aud 
fomented by the Puritans, who were determined that their majority 
of eleven should be made the most of,) had arisen between the king 
and the Parliament. One arose out of a demand by the Commons, 
that the king should remove the lieutenant of the Tower from his 
office, and place another, nominated by the Commons, in his room — 
a demand which the Peers considered to be an interference with the 
royal prerogative, and in which, therefore, they refused to concur. 
Then followed an unpleasant inquiry in the House of Commons, in 
which the queen was involved. The Commons, too, charged twelve 
bishops with high treason, for attempting to subvert the laws and 
being of Parliament. Riots and tumults, stirred up by the Puritan 
leaders, took place daily in the neighborhood of the houses of Parlia- 
ment ; and the bishops, being particularly obnoxious to the crowd, 
and not daring to encounter them, the}' absented themselves from 
Parliament. Twelve bishops protested in the House of Lords that 
they had been menaced, affronted, and assaulted, on their way to the 
house, and put in danger of their lives ; and they went the length of 
protesting,in writing. against all proceedings in the house during what 
they termed their forced and violent absence. The Lords communicat- 
ed the bishops' protest to the Commons, who immediately accused the 
latter of high treason for interrupting the business of Parliament ; (/) 



358 CHARLES I. 

and the Lords were so compliant as to order the bishops to be taken 
into custody. The king, also, declined to accede to an address from 
the Commons for a guard ; treating their fears for their safety as 
groundless ; assuring them of his protection, and promising condign 
punishment to any one who should offer them any violence ; but in 
reality hurt and annoyed at their interference with his prerogative. 

Events like these, occurring in one short month, were calculated to 
irritate the king's temper and bewilder his judgment ; but he would 
not have fallen into the rash and dangerous project of seizing the 
five members, if he had consulted the men whom, about this period, 
he had attracted to his councils. Lord Falkland had become secre- 
tary of state in place of Yane ; and Sir John Colepepper, knight 
of the shire of Kent, chancellor of the exchequer ; Mr. Hyde, also, 
had agreed to become a minister, but was without actual office ; and 
to these three the king consented to yield the direction of himself and 
his affairs. These accessions to the king's ministry were brought 
about by Lord Digby, who had long served the king as his minister, 
and whom the king had raised to the House of Lords. It was in- 
tended that Lord Digby should have ceased to be the adviser of the 
king; but between the king and Digby alone the project of the 
seizure of the five members was agreed and resolved upon, without 
the least communication with either of the other three. 

When the Parliament met after the adjournment for Christmas, 
the attorney-general attended at the House of Lords, and, standing 
at the clerk's table, stated that the king had commanded him to 
accuse, and that he did accuse, Lord Kimbotton, a member of the 
House of Peers, Mr. Holies, Mr. Pym, Mr. Hampden, Sir Arthur 
Haselrigge, and Mr. Strode, members of the House of Commons, 
of high treason. He delivered articles which he had received from 
the king, charging them with having endeavored to deprive him of 
his royal power, and to place in the subjects an arbitrary and 
tyrannical power ; by foul aspersions to alienate the affections of 
the people from the king, and to make him odious to them ; to 
draw the army to disobedience, and to side with them in their 
treacherous designs ; that they had traitorously invited a foreign 
power to invade the kingdom ; that they had traitorously endeav- 
ored to subvert the rights and very being of Parliament ; that they 



THE REIGN OF PURITANISM. 



359 



had, by force and terror ; endeavored to compel the Parliament to 
join them in their traitorous designs, and had actually raised and 
countenanced tumults against the king and Parliament ; and that 
they had traitorously conspired to levy, and actually had levied, 
war against the king." The attorney-general demanded a select 
committee to take the examination of the witnesses to be produced 
by the king, and that the persons of the accused should be secured. 
On the same day the king sent the sergeant-at-arms to the House 
of Commons with a message demanding the five members to be de- 
livered to the sergeant, and being delivered, that he should arrest 
them of high treason. The Commons immediately ordered Lord 
Falkland, the chancellor of the exchequer, and two other mem- 
bers, to attend the king, to inform him that the house would take 
his message into consideration with as much speed as the business 
would admit, and in the mean time would take care that the gentle- 
men should be ready to answer any legal charge made against 
them. The house, also, enjoined the accused members to attend 
the house daily until further orders. The king, nothing daunted, 
went on the following day in person to the House of Commons, 
accompanied by a guard of soldiers, to arrest the accused members. 
Private information was given of his approach, and the members 
were removed, the last only quitting the house as the king entered. 
He passed up to the speaker's chair, which he took, and after look- 
ing about the house, and not perceiving Mr. Pym, whose person 
he knew, he asked the speaker whether any of those persons were 
in the house, and where they were. The speaker, falling on his 
knees, replied, " I have neither eyes to see nor tongue to speak in 
this place, but as the house is pleased to direct me, whose servant 
I am here, and humbly beg your majesty's pardon that I cannot 
give any other answer than this to what your majesty is pleased to 
demand of me." The king, seeing that his attempt had been un- 
successful, addressed the house in a short speech from the speaker's 
chair, saying that " when he sent the sergeant-at-arms, he expected 
obedience, and not a message — that though he would be careful of 
their privileges, they must know that in cases of treason there was 
no privilege, and that so long as those persons he had accused were 
in the house, he could not expect that it would be in the right way 



360 CHAELES I. 

that he heartily wished it. But since he saw that the birds were 
flown, he would trouble them no more than to tell them he expected 
they would send them to him as soon as they returned to the house ; 
otherwise he must take his own course to find them." He retired 
amidst shouts of " Privilege ! Privilege ! " and the house, in great 
excitement, adjourned till the next day. 

When the Commons assembled, they passed a declaration that 
" the king's proceedings were a high breach of the rights and privi- 
leges of Parliament, and that they could not, with the safety of 
their own persons, sit any longer without a full vindication of so 
high a breach, and a sufficient guard wherein they might confide." 
They then adjourned to the 11th of January, but they appointed a 
committee to sit in the mean time at Guildhall, with power to con- 
sider and resolve upon all things that might concern the good and 
safety of the city ancj. kingdom. The House of Lords made a 
similar adjournment. Mr. Pym vindicated himself before the 
House of Commons from the king's charges, and the answer of the 
Puritan leader shows that Charles had founded his charges against 
the five members wholly on account of their Parliamentary con- 
duct ; although small indeed must have been his expectation that 
the charges could have been sustained in a tribunal which had par- 
ticipated in or sanctioned the acts charged against the accused. 
But he still continued his efforts, even his personal efforts, to arrest 
the members. During the short recess of Parliament he went into 
the city, where the accused members were concealed, and in a speech 
to the common council assembled at Gruildhall, he required their 
assistance in apprehending the accused. Three days afterwards he 
issued a proclamation commanding officers and magistrates to ap- 
prehend and convey them to the Tower ; but on the day before 
Parliament reassembled, the king quitted London, and retired to his 
palace at Hampton Court — never again to return to the metropolis 
of his kingdom until brought there for his trial and execution. 

The Parliament met on the 11th of January. The accused mem- 
bers were brought in triumph by water to Westminster, amidst the 
plaudits of the people, and took their seats in the House of Com- 
mons. It was now apparent that all chance of reconciliation was 
at an end, and both sides prepared for the civil war that was inevit- 



THE REIGN OF PURITANISM. 361 

able ; although for some time longer the forms of the constitution 
were complied with, because neither party was prepared nor likely 
to incur the responsibility of commencing the outbreak. The king 
and Parliament were now separated, and never afterwards commu- 
nicated but by messages or petitions, and by royal commission, 
when it was necessary that acts should be passed. The king was 
sensible of the great error he had fallen into, and of the mischief 
he had done to his own cause, by his rash proceeding. He tried to 
extricate himself from the difficulty, and to conciliate the Parlia- 
ment by a series of messages, acknowledging that. he had interfered 
with their privileges, and postponing the prosecution of the mem- 
bers ; and ultimately he went so far as to abandon any further pro- 
ceedings against them, and to offer a free pardon. But Puritanism 
never forgives, and the eleven majority in the Commons would ac- 
cept no reconciliation, answering every message by requisitions 
which increased the difficulties of their country. 

Charles endeavored to procure the mediation of the Lords. In 
a message to the house he suggested " that tne Parliament should, 
with all speed, fall into a serious consideration of all those particu- 
lars which they should hold necessary, as well for the upholding 
and maintaining of his just and royal authority, and for the settling 
of his revenue, as for the present and future establishment of 
their privileges — the free and quiet enjoyment of their estates and 
fortunes ; the security of the true religion then professed by the 
Church of England ; and the settling of ceremonies in such a man- 
ner as to take away all just cause of offence." The Lords ac- 
quainted the Commons that they had received a gracious message, 
which filled their hearts full of comfort and joy ; and they prepared 
an answer to thank the king, and to let him know that they would 
take his message into such speedy and serious consideration as a 
proposition of that great importance required. The Puritans re- 
fused to second the Peers' views, and coupled their refusal with a 
demand that " the king would be pleased to put the Tower of Lon- 
don, with all other forts and militia of the whole kingdom, into 
such hands as the Parliament should confide in." The Lords re- 
jected the proposed addition, and the offer of the king, as well as 
the demand of the Commons, came to nothing. 
16 



362 CHAELES I. 

The king gave the royal assent to several bills, of which the only 
one demanding our attention was a bill for taking away the temporal 
power of the bishops and clergy. It was the third which had been 
introduced into this Parliament for a similar purpose. The first 
was " A Bill to restrain Bishops and others in Holy Orders from 
intermeddling in secular affairs," which was sent up to the Lords 
on the 1st of May, 1641, and was carried then through all the in- 
termediate stages to the third reading, where it was rejected by a 
large majority. The second was brought in on the 20th of May, 
by Sir Edward Dering, and was entitled " A Bill for the utter 
abolishing and taking away all Archbishops, Bishops, their Chan- 
cellors and Commissaries, Deans and Chapters, Archdeacons, Pre- 
bendaries, Chanters, Canons, and all other their under officers." 
This received the name of the " Root and Branch Bill," and is a 
fair specimen of Puritan toleration. Puritanism has but one argu- 
ment for its opponents and the institutions it desires to overthrow. 
That argument is — abolition. They are " malignant," and must, 
therefore, be " utterly abolished." The Boot and Branch Bill was 
debated with great passion for twenty days, but was never brought 
to a conclusion, having been discontinued on account of the king's 
departure into Scotland. 

The title of the third was " An Act for disabling all persons in 
Holy Orders to exercise any temporal jurisdiction or authority." 
It enacted that no archbishop or bishop, or other person in Holy 
Orders, should at any time after the 15th of February, 1641, have 
any seat or place, suffrage or voice, or use or execute any power or 
authority in the Parliaments of this realm ; nor should be of the 
privy council, or justice of the peace, of oyer and terminer, or 
jail-delivery ; or execute any temporal authority by virtue of any 
commission, but should be wholly incapable and disabled." The 
Lords passed this bill almost with unanimity, only three bishops dis- 
senting. The king took time for consideration, which, being reported 
to the Commons, they, with the imperious and indecent haste which 
now characterized their proceedings, resolved that delay was denial, 
and desired the Lords to join them in reasons for hastening the royal 
assent. It was given a few days afterwards by commission ; and 



THE REIGN OF PURITANISM. 363 

thus the Puritans obtained at last the removal of the bishops from 
Parliament, for which they had so long and earnestly contended. 

It would have been supposed that Charles would have complied 
with any demand that could be made upon him, if he assented to a 
measure so sweeping and so repugnant to his feelings as that just 
described ; but he at length took a decided stand against the de- 
mand of the Parliament for his assent to an ordinance concerning 
the militia, by which persons to be nominated by the Commons 
should be intrusted with authority over the militia of the kingdom. 
He declined to concur in that ordinance ; and in an answer to the 
Lords, through the lord keeper, he declared " that he could not 
divest himself of the just power which God and the laws of his 
kingdom had placed in him for the defence of his people, and to 
put it into the hands of others for any indefinite time." It was 
thereupon " resolved that the king's answer was a direct denial of 
their desires ; that those who advised it were enemies to the state ; 
that if the king should persist in it, it would hazard the peace and 
safety of his kingdom, unless a speedy remedy were applied by the 
wisdom and authority of both houses of Parliament ; that such 
parts of the kingdom as had put themselves in a position of defence 
against the common danger, had done nothing but what was justifi- 
able ; that it would be a great hazard to the kingdom if the king 
removed to any remote parts from his Parliament, where they could 
not have convenient access to him on all occasions ; and they de- 
sired, also, that the prince might come to St. James's, or to some 
place near London, where he might continue." 

These resolutions were embodied in a message from both houses 
to the king, in which it was declared " that they were enforced in 
all humility to protest that if the king should persist in his denial, 
the dangers and distempers of the kingdom are such as will 
endure no longer delay; and unless he graciously assured them, 
by their messengers, that he would speedily apply his royal 
assent to the satisfaction of their former desires, they should be en- 
forced, for the safety of his majesty and the kingdom, to dispose of 
the militia in such manner as they had propounded, and they resolved 
to do it accordingly." 

The king returned an answer on the 2d of March, from his 



364 CHAELES I. 

palace of Theobald's. He said: "lam so much amazed at this 
message, that I know not what to answer. You speak of jealousies 
and fears. Lay your hands on your hearts and ask yourselves 
whether I may not likewise be disturbed with fears and jealousies ; 
and if so, I assure you this message hath nothing lessened them. 
For the militia I thought so much of it before I sent that answer, 
and am so much assured that the answer is agreeable to what injus- 
tice or reason you can ask, or I in honor grant, that I shall not 
alter it in any point. For my residence near you, I wish it might 
be so safe and honorable that I had no cause to absent myself from 
Whitehall. Ask yourselves whether I have or not. For my son, 
I shall take that care of him which shall justify me to God as a 
father, and to my dominions as a king. To conclude : I assure you 
upon my honor, that I have no thought but of peace and justice to 
my people, which I shall, by all fair means, seek to preserve and 
maintain ; relying upon the goodness and providence of God for 
the preservation of myself and my rights." 

We must here stop. We have brought the contest between the 
king and the Parliament to an issue, and we have come to the end 
of the legislation by which we proposed to limit the extent of our 
historical inquiries. There is no further statute to record in this 
reign ; all that follows is without regard to the principles or prac- 
tice of the ancient constitution. The difficult task will not be at- 
tempted of estimating the degrees of blame or approval which the 
parties deserve, in the several stages of the great contest ; but upon 
a general view of it, not many will be found who, testing the inci- 
dents by the principles of the constitution, would justify the pro- 
ceedings of Charles, or condemn those of the Parliament, down to 
the epoch of the Grand Remonstrance ; for few will doubt that if 
his policy and course of action had not been broken down, despot- 
ism would have been established. It is from the time of his de- 
parture for Scotland — after having passed the series of acts for ex- 
tending and confirming the liberties of the people — that it may be 
unhesitatingly asserted that the Parliament would have served their 
country best by taking their stand on the laws then established, and 
on the institutions as modified by those laws, and by directing their 
great power and influence to keep the king within the bounds of 



THE REIGX OF PURITANISM. 365 

constitutional government, under competent ministers, of whom lie 
about that time made a selection that the Gommous might have 
approved. When we look forward to the Restoration, and notice 
the laws that were then passed by way of complement to the legis- 
lation of this reign, we feel assured that such laws might have been 
obtained from Charles at the same time as the other laws ; and 
with much less reluctance than those repealed at the Restoration, 
which he submitted to pass. It is common to reply to such obser- 
vations by pointing out the perfidiousness of Charles's character, 
and his secret resolve to overthrow the concessions involuntarily 
made, if he should recover his power or the vigilance of the Com- 
mons should be relaxed ; and it must be confessed that his attempt 
against the five members very much weakened the hope which ap- 
pears before that attempt to have been entertained, that he would 
content himself with the constitutional position in which the new 
laws placed him, and would carry on the government under the 
guidance of constitutional ministers. But, on the other hand, it 
must be considered that Charles had received a severe lesson — that 
he could not hope to avert the vigilance and determination of the 
Commons — and that the failure of his attack on the five members 
prepared him for yet greater submission ; and it would have re- 
quired — probably on his part, and certainly on the part of his min- 
isters — the venture of their lives and fortunes, to have attempted 
again to govern the country, and to raise supplies, on prin- 
ciples put down by law and condemned by all parties. On the 
whole, therefore, we must observe that all the good in this reign 
was accomplished before Puritanism had gained an ascendency 
among the Commons ; and that from the day when they discovered, 
by the vote on the Grand Remonstrance, that they had a petty ma- 
jority in that house, the downward progress of affairs began. The 
truth is, Puritanism is always proscriptive — always aiming at des- 
potic domination. In England, in the reign of the unhappy Charles, 
as in these unhappy States to-day, it must and will rule, and its rule 
is ruin ! 



The breach between Charles and the Parliament became com- 
plete in August, and during nearly eighteen years the country went 
through the vicissitudes of civil war, of government by the Parlia- 



366 CHAELES I. 

ment, by the army, by a council of state, by a council of officers ; 
enjoying the blessings of peace and settled government only when 
Cromwell, in the name of Puritanism, obtained and exercised ab- 
solute power. During this whole period the constitution was disre- 
garded; and although imitated by Cromwell in the institutions he 
established, these could not acquire the freedom and independence 
which distinguished the ancient institutions, and they became mere- 
ly instruments of Cromwell's will. During the Interregnum, we 
must not look for any contribution to the history of the constitu- 
tion; it was suspended throughout the whole period, only recover- 
ing its action at the Restoration. To that event, therefore, we must 
now pass ; although we may admit that the events of the inter- 
mediate period are of the highest interest, and well deserving of 
laborious study. 



CHAPTEK XI. 

CHARLES n.— THE RESTORATION.— ABOLITION OF THE FEUDAL 
TENURES.— HABEAS CORPUS ACT. 

ENGLAND UNDER CROMWELL — REACTION FROM PURITANISM AT THE RESTORATION 

TENDENCY TO RESTORE ABSOLUTISM — MODERATION OF THE ROYALISTS — THE 

FEUDAL TENURES — FORMER EFFORTS TO ABOLISH THEM THEIR FINAL ABOLITION 

IN THIS REIGN HABEAS CORPUS ORIGIN OF THE NAME — PROVISION OF MAGNA 

CHARTA — HISTORICAL SKETCH AUTHOR OF THE BILL ITS REPRODUCTION IN 

THE UNITED STATES — ITS TWELVE PROVISIONS ITS IMPORTANCE ILLUSTRA- 
TION FROM THE PARALLEL HISTORY OF FRANCE AND ENGLAND CONCLUSION. 

The history of England during the period of the Interregnum, 
displays the agitation of a people deprived of their ancient gov- 
ernment, but so enamored of its forms and principles, that when 
all opposition was subdued, and power was finally concentrated in 
one ruler, he found it necessary to imitate the ancient system as 
far and as closely as the new elements would assimilate to the old, 
Oliver Cromwell, avoiding the title of king from dread of the dis- 
approval of the army, took the title of Protector, with analogous 
powers ; and he instituted two houses with similar functions to the 
houses of Parliament. But not regarding the principle of freedom, 
which the adoption of the ancient system involved, or being unable 
to carry on his government in accordance with it, he did not for- 
bear from the exercise of despotic authority - and when he had is- 
sued his own ordinances for the levying of taxes, he imitated the 
worst proceedings of his predecessor, Charles, by the intimidation 
of parties who resisted payment, by imprisonment of their advo- 
cates, and by coercion or removal of the judges. 

Seldom if ever has so great a change come over the manners 
and customs of any nation as took place in England on the acces- 
sion of Charles II. : instead of that fanatic gloom which, during 



368 CHAELES n. THE RESTORATION. 

the reign of the Commonwealth, had repressed every expression of 
pleasure and induced a rude austerity of manners, a taste for 
elegance and refinement, too frequently degenerated into luxury 
and voluptuousness, distinguished the new court and pervaded 
every class of society. We should, however, form a wrong es- 
timate of the nature of this change did we suppose that the great 
body of the people had become on a sudden less religious or less 
moral : it was the reaction which naturally follows a period of un- 
due restraint. " Men," says a contemporary writer, " freed from 
the bondage under which they had been held, madly rushed into 
every excess, and indulged in licentiousness in proportion to the 
severity of the restraint under which they had been held." Even 
the Puritans themselves had undergone a great and remarkable 
change since their elevation to power ; they were no longer that 
small and virtuous body which they formerly had been, but a het- 
erogeneous mass, united only by extravagant whims about dress, 
diversions, and postures, which brought the very name of religion 
into ridicule with the multitude. Before the civil wars, says Macau- 
lay, even those who most disliked the opinions and manners of the 
Puritan were forced to admit that his moral conduct was generally, in 
essentials, blameless; but this praise was now no longer bestowed, 
and unfortunately was no longer deserved. The general fate of sects 
is to obtain a high reputation for sanctity while they are oppressed, 
and to lose it as soon as they become powerful. Soon the world 
begins to find out that the godly are not better than other men, and 
argues, with some justice, that, if not better, they must be much 
worse ; and in no long time, all those signs which were formerly re- 
garded as characteristic of a saint, are characteristic of a knave. 
Such was the tone of public feeling at the time of the Restoration ; 
both Presbyterians and Independents had lost the confidence of the 
nation ; and the character of the restored king tended in no slight 
degree to favor the spread of latitudinarian opinions. Accustomed 
to the lax morality of the Continental courts, Charles II., although 
a thorough gentleman in manners, refined and elegant in tastes, 
amiable in disposition, and agreeable in conversation, was never- 
theless a voluptuary, and addicted beyond measure to sensual in- 
dulgence. That such a character in the monarch should have com- 



THE RESTORATION. 369 

pletely impressed itself upon the people, may be fairly charged 
upon the tyrannous Puritanism — more tyrannous than the most un- 
limited monarchy — under which the nation had so long groaned. 

But, further than to notice that alike in action aud reaction, 
Puritanism is the most vicious pest of a community, we do not care to 
carry these remarks. Nor does our space permit us to dwell at large 
on the events of the reign of Charles II. To our purpose it suffices 
to narrate what are to us the two great acts of this reign — the abo- 
lition of the feudal tenures, and the passage of the Act of Habeas 
Corpus. But for these celebrated acts we could take little pleasure 
in the story of this period. Throughout the whole of it we witness 
the recovery of the monarchical element to almost absolute power, 
through the willing prostration of the people, tired of the changes 
and insecurity of the Interregnum, eager to place their idol on the 
highest pinnacle of sovereignty ; and owing such liberty as remain- 
ed to the forbearance of the king's ministers. Hyde, as lord chan- 
cellor, was the chief minister. He had resided with Charles abroad, 
where as titular lord chancellor he had managed Charles's affairs ; 
and now since his return, the king, giving himself up to pleasure, 
left everything in his chancellor's hands. To his constitutional 
training are to be ascribed the moderation of the Government, in 
not taking advantage of the transports that prevailed. He resolv- 
ed (says Burnet) not to stretch the prerogative to what it was 
before the wars ; and would neither set aside the Petition of Right, 
nor endeavor to raise the courts of Star Chamber or High Commis- 
sion again — which could have been easily done if he had set about 
it ; nor did he think fit to move for the repeal of the act for trien- 
nial Parliaments, till other matters were well settled. He took 
care indeed to have all things extorted by the Long Parliament 
from Charles I. repealed ; but in regard to revenues he had no 
mind to put the king out of the necessity of recourse to Parliament. 
" The old civil polity," says Macaulay," was now, by the general 
consent of both the great parties, reestablished. It was again ex- 
actly what it had been when Charles I., eighteen years before, 
withdrew from his capital. All those acts of the Long Parliament 
which had received the royal assent were admitted to be still in 
force. One fresh concession, a concession in which the Cavaliers 
16* 



370 CHARLES II. THE RESTORATION. 

were even more deeply interested than the Roundheads, was easily 
obtained from the restored king. The military tenure of land had 
been originally created as a means of national defence. But in the 
course of ages, whatever was useful in the institution had disappear- 
ed ; and nothing was left but ceremonies and grievances. A land- 
ed proprietor who held an estate under the crown by knight ser- 
vice — and it was thus that most of the soil of England was held — 
had to pay a large fine on coming to his property. He could not 
alienate one acre without purchasing a license. When he died, if 
his domains descended to an infant, the sovereign was guardian, and 
was not only entitled to great part of the rents during the minor- 
ity, but could require the ward, under heavy penalties, to marry 
any person of suitable rank. The chief bait which attracted a 
needy sycophant to the court was the hope of obtaining, as the re- 
ward of servility and flattery, a royal letter to an heiress. These 
abuses had perished with the monarchy. That they should not re- 
vive with it was the wish of every landed gentleman in the kingdom. 
They were therefore solemnly abolished by statute ; and no relic 
of the ancient tenures in chivalry was suffered to remain, except 
those honorary services which are still, at a coronation, rendered 
to the person of the sovereign by some lords of manors. " 

The surrender of these feudal revenues had been the subject 
of treaty with James I. ; but the treaty failed, as we have seen, 
from the uncertainty felt by the Parliament whether, when they 
had granted the compensation, the surrender would be binding on 
the king's successors, on the principles of divine right. Charles I., 
at the treaty of Newport, consented to surrender the revenues for 
an annual sum of £100,000. The Long Parliament voted the abo- 
lition of them unconditionally, declaring that they had a right to 
take away the burden, as a recompense to the whole kingdom for 
having ventured their lives and fortunes in that time of great dis- 
traction ; and from that period the revenues were not collected, 
and the court of wards ceased to exercise its functions. The Con- 
vention Parliament, as it was called which settled the Restoration, 
proceeded on the principle of compensation; and resolved, as a 
consideration of the surrender, to make up the king's entire rev- 
enue to £1,200,000 per annum, to be derived in part from a per- 



ABOLITION OF FEUDAL TENUEES. 371 

petual excise of all beer and other liquors ; a tax which had been 
introduced by the Long Parliament for short periods, yet not with- 
out being charged with relieving the landowners at the expense of 
the community. The act which affected the abolition of the feudal 
tenures, also imposed the duties which were its compensation. It 
is entitled " An Act for taking away the Court of Wards, and 
Liveries, and Tenures in Capite and by Knight's Service, and Pur- 
veyance, and for settling a Revenue on His Majesty in lieu thereof." 
It adopted the intermission of that court by the Long Parliament, 
on the 24th of February, 1645, as the date of the abolition; and 
it enacted " that the court of wards and liveries, and all ward- 
ships, liveries, primer seisins, and ousterlemains, values and for- 
feitures of marriage, by reason of any tenure of the king's majesty, 
or of any other, by knight service, and all other gifts, grants, char- 
ges, or incidents arising for or by reason of wardship, liveries, pri- 
mer seisins, or ousterlemains, be taken away and discharged from 
the 24th of February, 1645, and that all fines for alienations, and 
also aid pur fil marier, and pur fair fitz chevalier, be taken away and 
discharged as from the same day." 

All tenures of land held of the king or of any other person or 
persons, bodies politic or corporate, were declared to be turned 
into free and common socage, discharged from the feudal charges 
and incidents, from the 24th day of February, 1645 ; and all future 
grants of lands by the king to be in free and common socage." 
But it is declared that the act should not take away copyhold 
tenures, frank-almoign, nor the honorary services of grand-ser- 
jeantry. 

The act consulted the principles of human nature by transfer- 
ring the guardianship of children under twenty-one, and not married 
at the time of their father's death, and the management of their 
lands and property, to guardians to be appointed by frhe father, by 
deed in his lifetime, or by his will. 

It was enacted that henceforth " no money or other thing 
shoul 1 be paid or levied, in regard of any provision, carriages, or 
purveyance for the king, his heirs or successors ; that no person, 
under warrant, commission, or authority, under the great seal or 
otherwise, by color of making provision or purveyance for the king 



372 CHARLES II. THE RESTORATION. 

or queen, their children or household, should take any timber, fuel, 
cattle, corn, grain, malt, hay, straw, victual, cart, carriage, or 
other thing whatever, of any of the subjects of the king, without 
the full and free consent of the owner, had and obtained without 
menace or enforcement ; nor summon, warn, take, use, or require 
any of the king's subjects to furnish or find horses, oxen, or other 
cattle, ploughs, wains, or other carriages, without such full and free 
consent ; that no preemption should be allowed or claimed on be- 
half of the king, queen, or children of the royal family, in market 
or out of market; but forever after it should be free to all the 
king"s subjects to sell, dispose, or employ their goods to any other 
persons as they list." 

But this statute did not take away that right of the crown 
called escheat, by which it succeeds to the lands of persons who die 
without heirs, or whose heritable blood has been attainted by trea- 
son or felony, and it still remains a principle of the constitution, 
that the crown, as parens patriot, is entitled to the property of per- 
sons who die leaving no heirs. But in modern days that right is 
possessed with no advantage to the crown, because its right is sur- 
rendered to the public use ; and with little advantage to the public, 
because the Government is always open to petitions for the disposal 
of the property in favor of persons having equitable or moral 
claims to it. 

Thus ended the oppression of the feudal system in England, 
which had, for ages, rested like an incubus upon the people. What- 
ever struggles might yet remain, the spirit of individual freedom 
was at length established, and we cannot wonder that the same 
reign which saw the final abolition of this system of obsolete 
autocracy should have also seen the passage of the Habeas Corpus 
Act. 

Habeas Corpus is an ancient English writ which has been used 
for a variety of purposes from the remotest antiquity. It is ad- 
dressed to a sheriff or other officer, and commands him to have the 
body of the person named at a certain place and time. When all 
writs were in Latin, the characterizing words of this writ were ut 
habeas corpus, and the name has long survived the use of these 
words in the writ. One of the purposes for which it was used was 



HABEAS CORPUS ACT. 373 

to recover freedom which had been wrongfully taken away. Per- 
sonal liberty was always asserted by the common law from its 
earliest ages ; and it was always assailed by kings who would be 
tyrants, with an earnestness proportioned to their tyranny. Hence 
it became necessary to declare in the most solemn manner in Magna 
Charta, that " no man shall be taken or imprisoned but by the 
lawful judgment of his peers, or by the law of the land ; " and 
this clause, more than any other, has given to that instrument the 
name of the palladium of English liberty, a name which is equally 
deserved by the writ of habeas corpus. For, on the one hand, the 
great charter did not enact this as a new rule of law, but only de- 
clared it to be the law of the land ; and on the other, its force and 
influence gradually faded, in despite of repeated formal confirma- 
tions ; and this law became actual and operative only by means of 
the habeas corpus. This writ was issuable from the king's bench, 
and it was used to protect or restore liberty, by bringing the prisoner 
before the court, whose duty it was to order his immediate discharge 
if he were not restrained of his liberty according to law. But it 
was evaded by courts and sheriffs who were disposed to support 
royal or ministerial usurpations; and it became so powerless that 
early in the reign of Charles I. the court of king's bench formally 
decided that they had no power to release any person imprisoned 
without any cause assigned, if he were imprisoned by the express 
command of the king, or by the lords of the privy council. The 
Petition of Right asserted the illegality of this decision, and declared 
that " no freeman should be imprisoned or detained without cause 
shown, to which he may make answer according to law." But the 
means of enforcing this rule were still imperfect, and personal liberty 
was still violated; and by 16 Charles I., ch. 10, various provisions 
were enacted, intended to make the writ of habeas corpus more 
effectual. But this was not enough. The judges still continued 
to refuse the writ at their pleasure, or issued it only in term time ; 
and prisoners were sent to distant jails, where sheriffs and jailers 
refused to obey it ; or if the party imprisoned were brought before 
an examining court, his liberty was still withheld on frivolous pre- 
tences. At length, in the thirty-first year of the reign of Charles II. 
(1679), what is now understood by the Habeas Corpus Act was en- 



374 CHARLES II. THE RESTORATION. 

acted. It consisted of a variety of provisions, devised with so 
much skill and so well adapted to give each other mutual support, 
that it may safely be asserted that personal liberty must be safe so 
long as this law remains in force. Evasion of it in England is 
almost impossible; in the United States it was till recently believed 
to be entirely so ; and it can be successful only by a positive and 
open violation of the law, or by a distinct denial of the writ. We 
owe this admirable law — which is the protection of the innocent, 
not the defence of the guilty — to Lord Shaftesbury, who, when he 
was appointed lord chancellor, had received no legal education 
whatever, and made no pretence to any knowledge of technical law ; 
nor could his best friends, then or since, claim for him the credit 
of any especial regard for liberty, or any moral excellence whatever. 
It happened, however, that his personal purposes at the moment 
were such as to induce him to make this law as practical and as 
effectual as possible; and he brought to this object all the resources 
of his genius and experience, and by their help succeeded in giving 
to the act an efficiency which the lawyers who had been at work 
upon it for many generations had never been able to impart. 

The English statute has been copied in the United States with- 
out essential change ; the variations from it being only such as 
would, in the opinion of various legislatures, make its provisions 
more stringent, and the security it gives to liberty more certain 
and available. The provisions of the statutes of habeas corpus, 
now in force in the different States, may be stated generally thus : 

1. The writ commands the sheriff, or other person to whom it 
is directed, to have the body of the person who is said to be re- 
strained of his liberty forthwith before the justice issuing it, or 
some other tribunal competent to try the questions the case may 
present ; and to summon the person restraining the alleged prisoner 
to be there also, and bring with him the cause of the restraint, that 
all parties may then and there submit themselves to whatever may 
be lawfully adjudged and ordered in their behalf. The language 
varies in different statutes which give the form of the writ ; but it 
is always substantially as above. 

2. The writ must be granted, as of right, by any of the justices 
of the higher courts, and, in their absence or inaccessibility, by any 



H ABEAS COEPUS ACT. 375 

of those of a lower court, down to justices of the quorum ; the law 
covering in this respect a wide range, so as to insure to every appli- 
cant some one from whom this redress or remedy may come. 

3. It must be granted at any time when it is prayed for, whether 
a court be sitting or not. 

4. It must be granted either to the party himself restrained of 
his liberty, or to any one applying for him ; and if his name be un- 
known, the best description which can readily be given is sufficient. 

5. The application must be in writing, and must be verified by 
the oath of the applicant. 

6. The sheriff or other officer to whom it is directed must ren- 
der prompt obedience and make immediate service, and return the 
writ forthwith, with a full statement of his doings. 

7. It must be returned before the proper magistrate at chambers, 
if a court to which it is made returnable be not then in session. 

8. Upon the return, the alleged prisoner being present, the case 
is tried ; and, unless sufficient cause for his imprisonment is shown, 
he is ordered to be discharged at once. 

9. If not wholly discharged, the court or magistrate may order 
him to be discharged on giving reasonable bail, if he be held for 
any bailable offence or cause. 

10. In some of the States it is provided that the writ may not 
issue if the party restrained be imprisoned for crime, or in execu- 
tion civil or criminal, and by lawful warrant. In others these ex- 
ceptions are not made, but if facts like these appear on trial the 
prisoner is remanded. 

11. In general, after a party has been discharged on habeas 
corpus, he cannot again be imprisoned or restrained of his liberty 
for the same cause. 

12. The issuing of the writ by the magistrate applied to, and 
prompt and full obedience to it by the officer or other person to 
whom it is directed, are secured by heavy peualties ; and also by 
the fact that any applicant to whom the writ is refused by one 
magistrate may apply to another, and the number of those to whom 
he may thus resort is so large that it is hardly possible for them 
all to be corrupted, or for any reason indisposed to render due 
obedience to the law. 



376 CHARLES II. THE RESTORATION. 

The vast importance of this law can be appreciated only by 
those who have experienced or studied the history of despotism. 
Whether the ruling authority of the nation (be it in the hands of 
one or many) shall be absolute or subordinated to law, must depend, 
in the last result, upon its power over the persons of those who are 
subject to it. Whatever be the law, if there be a sovereign, whether 
emperor or president, who may disregard it, and put in strict im- 
prisonment those who resist him ; if he may substitute his own 
commands for law, and take away from society and from all power 
of resort to law those who do not obey him, it is obvious that there 
can be no disobedience and no resistance which is not rebellion if 
it be put down, or revolution if it succeed. The histories of 
France and of England offer the most perfect illustration of this. 

Beginning from the feudal ages, those countries stood about 
upon an equality in respect to the power of the sovereign and the 
personal rights of the subject. Under some of her monarchs, of 
the Plantagenet and Tudor families, England seemed to be yielding 
herself up to a more absolute tyranny than was known to her 
neighbors. But as the ages went on, it became apparent in France 
that the subjection of the citizen to the sovereign became with 
every generation more complete. By insidious rather than open 
increases, the power of the king, or rather the power of ministers 
who acted in the name of the king/ to imprison at their pleasure 
whom they would, for political or personal, public or private rea- 
sons, became so entirely established tha.t every minister of the 
crown had, it is said, a large number of blank lettres de cachet (or 
letters under the privy seal of the king), which he could fill with 
names at his pleasure, and by which the police were authorized and 
commanded to imprison the party named, and hold him in prison 
at the pleasure of the minister. The Bastile became a recognized 
instrument of state ; and in its cells lay those who were placed 
there only at the suspicion or the caprice of some minister, and who 
remained there only because they were forgotten. Of course this 
state of things could not last, for no one acquainted with human 
nature could doubt that such irresponsible and enormous power 
would be prodigiously abused. Therefore the French revolution 
came to do the work which must be done, and only revolution could 



HABEAS COKPUS ACT. 3 11 

do ; and therefore the reign of terror almost necessarily replaced 
the gilded and graceful despotism which had been its parent. But 
this could not endure, and perhaps the changes which have since 
given to that country almost every possible form of government, 
agree only in proving that in France there is not that training 
for personal liberty, .that inwrought determination to be personally 
free at all hazards, which can become a part of the life-blood of a 
nation only after many generations have enjoyed the blessings of 
freedom, and can alone effectually secure and permanently preserve 
that liberty which is the fruitful spring of every other good. 

If we now turn to England, we have seen that in the Anglo- 
Saxon times, despotism was rarely attempted and never successful; 
that the laws and institutions of those days are all founded on the 
presumption of personal liberty and rights ; that this element of 
character might for a time be suppressed or enfeebled, but that it 
could never be annihilated ; that it rose from time to time into 
prominence and activity, and, as opportunity could be offered or 
could be made, gradually asserted itself, first in the fact of a com- 
mon law, which the courts regarded as binding upon them ; then, in 
the recognition of personal liberty and right as an unquestionable 
principle of the common law ; then by such timely assertions as in 
Magna Charta, in the Petition of Right, and finally in that Act of 
Habeas Corpus which we may well hope has settled the question 
for all time. That the habeas corpus was once sufficiently valued 
in the United States may be inferred from the fact that the Federal 
Constitution provides that " the provisions of the act shall not be 
suspended, unless when in case of rebellion or invasion, the public 
safety may require it ; " and there is a provision to the same effect 
in some of the State constitutions. Everywhere the statute itself is 
enacted, and, so far as words can have the effect, made stringent and 
effectual. The time, however, has now passed when laws and con- 
stitutions may be trusted as complete securities and guarantees of 
rights. It is not certain, it is very doubtful, whether in these States 
the value of the right of personal liberty is sufficiently apprehended. 
Adlmc subjudice lis est. It is a question that will verily speedily 
be set at rest. 



CHAPTEE XII. 

JAMES H.— THE REVOLUTION.— BILL OF RIGHTS.— ACT OF 
SETTLEMENT. 

PRELIMINARY OBSERVATIONS — THE EXCLUSION BILL — WHIG AND TORY — LAWS 
AGAINST ROMANISTS JAMES, AT HIS ACCESSION, ACKNOWLEDGES THEIR OBLI- 
GATION — SUPPLIES GRANTED BY PARLIAMENT FOR THE TERM OF THE KING'S 

LIFE JAMES INSISTS ON SUPPLIES FOR A STANDING ARMY, BUT DECLARES 

THAT HE HAS BROKEN AND WILL BREAK THE TEST LAWS ANSWER OF THE 

COMMONS — ILLEGAL REVIVAL OF THE HIGH COMMISSION COURT DARING DE- 
CLARATION OF INDULGENCE PUBLISHED BY THE KING — EXECUTION OF IT- 
TRIAL OF THE SEVEN BISHOPS PRINCE OF ORANGE LANDS — FLIGHT OF JAMES 

MEETING OF LORDS AND COMMONS AND THE COMMON COUNCIL OF LONDON CON- 
VENTION AT WESTMINSTER JOINT RESOLUTION OF LORDS AND COMMONS 

SETTLEMENT OF THE CROWN ON WILLIAM AND MARY SUBSTANCE OF THE BILL 

OF RIGHTS — ACT OF SETTLEMENT — ITS NECESSITY — SUBSTANCE OF IT — CON- 
CLUSION. 

The contest between prerogative and freedom was brought to a 
conclusion in the reign of James II., who ascended the throne on 
the 6th of February, 1685. His brief reign, if we estimate it by 
the events which resulted from it, is perhaps the most important in 
the history of the constitution. He was a Romanist of the sternest 
bigotry. He was so confident in his divine right as king, that he 
seemed blinded to any danger from the open profession of the pro- 
scribed religion ; and in reliance on that right, and on the passive 
obedience of the people, he violated almost every fundamental law. 
The simple narrative of his illegal acts furnished an ample justifica- 
tion of his removal from the throne ; and the reaffirmation and par- 
liamentary declaration of the violated laws formed the chief part of 
the code of rights and liberties deemed necessary for a permanent 
constitutional government. The Declaration of Rights which fol- 
lowed his abdication was founded, not uoon abstract or theoretical 



BILL OF EIGHTS. ACT OF SETTLEMENT. 379 

principles of government, but upon what, in legal phrase, may be 
called James's overt acts of treason to the nation. 

There had been in the reign of Charles II., so much dislike and 
even dread of James's succession to the throne — a dread increased 
by the panic spread by the so-called Popish plot — that a large 
party in the nation endeavored to exclude him from the succession, 
on the ground of his being a Papist. The House of Commons 
passed a bill for that purpose, and for banishing him from the king- 
dom ; from which fate he was only saved by a majority in the House 
of Lords. The Exclusion Bill long and deeply agitated the nation 
and the Government ; and when James had ascended the throne the 
people had become divided into two parties, under the then new 
but now familiar names of Whigs and Tories. Those who were 
inimical to Popery — as well on religious grounds as from the en- 
couragement it gave to the doctrines of divine right and passive 
obedience, but who were at the same time favorable to religious 
toleration among Protestant sects — were called Whigs ; while those 
who,holding those doctrines as of irremovable obligation, and although 
they supported the exclusive authority of the Protestant established 
Church, would not concur in depriving even a professed Papist of 
his right of succession to the throne — were called Tories. 

At the accession of James, the laws for the exclusive establish- 
ment of the Church of England were clear, and defined by laws not 
only explicit, but extremely rigorous in their provisions. Charles 
II. had on several occasions endeavored to produce some alleviation 
of these, but he was told by Parliament that he had no power of 
interference, and that no alteration could be made but by an act of 
Parliament. Those laws, therefore, the king of England was bound 
to conform to, both in his own person and in his government. 
James felt the force of these obligations. In his first address to his 
privy council he said he had been reported to be a man for arbitrary 
power ; but that was not the only story that had been made of him, 
and he should make it his endeavor to preserve the government in 
church and state as it was then established. But he made it 
known after his brother's funeral, that he had died a Roman Catho- 
lic ; and he himself soon afterwards appeared publicly at mass. 

Parliament assembled on the 10th of May, 1G85, by virtue of 



380 JAMES II. THE REVOLUTION". 

proclamations issued, as well for the meeting of Parliament as for 
laying, on James's sole authority, the customs and duties which con- 
stituted the revenue of the late king, bat which expired at his 
decease. The House of Commons contained a large majority of ad- 
herents of James — the effect of changes made in the last reign in the 
charters of the corporations of the parliamentary boroughs, for the 
purpose of bringing them under the influence of the crown. The 
king opened the session on the 22d of May, and renewed the declar- 
ation he had made to the privy council. The House of Commons 
without delay unanimously voted to him for his life the whole 
revenue settled on the late king. The same Parliament also granted 
to James for his life — as a supply for the navy — an imposition on 
wines and vinegar which had been received by Charles II., and a 
further sum of £400,000 towards the extraordinary expenses in- 
curred by the rebellion of the Duke of Monmouth. Thus in regard 
of one of the first constitutional principles, James was rendered in- 
dependent of Parliament for supplies, unless in case of war. The 
consequences might have been foretold. The king, thus provided 
and unrestrained, proceeded to carry out the ardent objects of his 
life, the restoration of the ascendency of the Roman Catholic reli- 
gion and the absolute and unshackled power of the monarch. The 
history of his reign shows that James, in the prosecution of his de- 
signs, was restrained by no law — by no compassion for those whom 
he opposed or oppressed — and by no consideration of his duties as 
king under a constitutional government. To assist him in these 
objects he entered into secret arrangements with the king of France, 
and, notwithstanding the liberality of Parliament, accepted from 
him large sums of money — that monarch receiving his recompense 
in the betrayal of the interests of the English nation. 

The 6rst open design of James was to obtain the sanction of 
Parliament for the maintenance of a standing army, and their ap- 
proval of his having appointed popish officers to serve in the army 
during Monmouth's rebellion, without having taken the tests against 
popery. The Parliament met in a new session on the 9th of No- 
vember, after the supression of the rebellion. James in his speech 
reflected on the insufficiency of the militia. He hoped " everybody 
would be convinced it is not sufficient for such occasions ; and that 



BILL OF RIGHTS. ACT OF SETTLEMENT. 381 

there is nothing but a good force of well-disciplined troops, in con- 
stant pay, that can defend us from such as either at home or abroad 
are disposed to disturb us." His concern for the peace and quiet 
of his subjects, he said, made it necessary to increase the number 
to the proportion he had done ; and to support the charge of keep- 
ing such a body of men on foot, he asked for a supply. " Let no 
man take exception," he added, " that there some officers in the 
army not qualified, according to the late tests, for their employments. 
The gentlemen, I must tell you, are most of them well known to 
me ; and having formerly served with me on several occasions, and 
always approved the loyalty of their principles by their practice, I 
think them now fit to be employed under me ; and I will deal 
plainly with you, that, after having had the benefit of their service 
in such a time of need and danger, I will neither expose them to 
disgrace, nor myself to the want of them, if there should be another 
rebellion to make them necessary to me." 

The proposal for a standing army, and for a violation of the test 
acts, changed the obsequiousness of the Parliament, and roused an 
opposition partaking of the spirit of former parliaments. The court 
party carried a resolution for a supply, but with the addition that a 
bill be brought in to render the militia more useful, equivalent to 
a declaration against a standing army ; and the Commons after- 
wards voted an address, in which they represented to the king that 
u the officers in the army, who had not complied with the tests, could 
not by law be capable of their employments, and that their incapaci- 
ties could not be taken away but by act of Parliament." They 
said they would pass an act to indemnify them from the penalties 
on this occasion, and they besought the king to give such directions 
as that no apprehensions or jealousies might remain in the hearts of 
his subjects. Disapprobation of the king's proceedings spread to 
the House of Lords, extending even to the bench of bishops ; and 
James, perceiving that resolutions would be passed disapproving of 
his proceedings, prorogued the Parliament, sacrificing even the vote 
for the supply, which had not been perfected by an act. Parlia- 
ment was kept in existence by repeated prorogations for about a 
year and a half, but without holding a session, and no Parliament 
assembled again during this reign. 



382 JAMES II. THE KEVOLUTKXN". 

The High Commission Court established by Elizabeth had been 
abolished by a statute of the Long Paliament, and its abolition had 
been confirmed by a statute of Charles II., which also declared 
that no similar court should be constituted. Yet in contempt of 
those laws a court was erected called the Court of Commissioners 
for Ecclesiastical Causes, to which, without any other authority than 
his own, James gave summary and arbitrary jurisdiction over all 
ecclesiastics, and of which he made his infamous Lord Chancellor, 
Jeffreys, perpetual president. The Bishop of London, who had 
offended the king by the part he had taken in Parliament, was the 
first person summoned before the new court, by which he was sus- 
pended from his office. 

In exercise of his assumed prerogative to dispense with the 
statute law, James published a declaration of indulgence, of the most 
daring character. He declared " that the execution of all, and all 
manner of penal laws in matters ecclesiastical, should be immediately 
suspended ; and he gave free leave to all his subjects to serve God 
their own way, either in public or private, provided they took special 
care that nothing was preached or thought tending to alienate the 
people from his government." He declared that the oaths of alle- 
giance and supremacy, as also the several tests and declarations of 
25 and 30 Charles II., should not for the future be required to be 
taken by any person who was or should be employed in any place 
of trust ; and that it was his pleasure and intention to grant his 
royal dispensations under the great seal to all persons so employed, 
who should not take the said oaths. He gave free pardon to all 
non- conformists, recusants, and other his loving subjects, for all 
crimes and things committed against the penal laws. 

Under the authority of this declaration (which, however much 
we may now admire its principles, was clearly in derogation of law, 
and opposed to the feelings of his people) James took Jesuits into 
his service, and appointed Roman Catholics to the highest offices of 
the state, and to commands in the army and navy. He went so far 
as to appoint Roman Catholic priests to ecclesiastical offices in the 
universities of Oxford and Cambridge ; and when his nominees 
were refused, he deprived the heads of the universities of their 
dignities. He sent an extraordinary ambassador to the Pope ; al- 



BELL OF EIGHTS. ACT OF SETTLEMENT. 3 S3 

though intercourse with the Roman pontiff was, by the laws of Eng- 
land, high treason. He also gave audience to a nuncio from the 
Pope. Four Roman bishops were publicly consecrated in the royal 
chapel, and the popish regular clergy attended his palace in the 
habits of their order. He appointed a Roman Catholic to be of his 
privy council, and altered the privy counsellors' oath by expunging 
the declaration against foreign prelates. 

In April, 168S, James renewed his declaration for liberty of con- 
science, and issued an order in council, requiring the bishops to send 
copies of it to all their clergy, and to order the clergy to read it on 
two several Sundays in time of divine service. The archbishop and 
six bishops petitioned the king to lay before him the reasons that 
determined them not to obey the order in council. They were ad- 
mitted to his presence. James threateningly insisted upon being 
obeyed, and they retired with the words, " The will of God be done." 
They were immediately committed to the Tower, and an information 
presented against them for a misdemeanor, on which they were 
afterwards brought to trial. 

The trial of the seven bishops is a memorable instance of the 
bigotry, injustice, and cruelty of James, and of the corrupt subser- 
vience of his judges. But this wicked scheme failed of success. 
The bishops were triumphiantly acquitted. Universal joy spread 
throughout the nation. James was informed of the acquittal when 
he was reviewing at Hounslow the standing army that he uncon- 
stitutionally maintained. Whilst partaking of refreshments in the 
commander's tent, he heard the shouts of the soldiers, and he in- 
quired the cause. "Nothing," was the reply, " but the joy of the 
soldiers that the bishops are acquitted." " Do you call that noth- 
ing? " said the king ; " so much the worse for them." 

Time was not allowed to James for the fulfilment of the ven- 
geance these words implied. The nation's power of endurance was 
at an end ; the most conscientious believers in the doctrine of the 
indefeasible right of kings, felt unable to justify the king's conduct, 
and many of the Tory aristocracy joined the Whigs to remove James 
from the throne, and to place there, in his room, William, Prince of 
Orange, and his consort the Lady Mary, daughter of James — both 
Protestants, and the prince the head of the Protestant interest in 



384 JAMES II. THE REVOLUTION. 

Christendom. An invitation was sent to them by a large number 
of the peers, both spiritual and temporal, and of the leading men 
amongst the commons ; and William published a declaration, accept- 
ing the invitation, with the view, as he stated, " to get a free Parlia- 
ment assembled, which might secure the national religion and liberty 
under a just and legal government for the future." James prepared 
to defend his throne, but when William arrived, supported by an 
army, James, with his queen and infant son (born at this important 
juncture), fled to France. 

The throne being vacant by the flight of James, the lords spirit- 
ual and temporal assembled in their house, to about the number of 
ninety, and William desired that all persons who had been members 
of the House of Commons in the reign of Charles II. (for the 
assembling of James's Parliament might be considered as a recog- 
nition of his continued authority), with the lord mayor and alder- 
men of London, and fifty of the common councilmen, would meet 
at St. James's, on the 26th of September, 1687. 

One hundred and sixty members, with the mayor and corpora- 
tion, met accordingly, and they adopted an address to the prince, 
which the Lords had previously voted (and which was subscribed by 
about ninety peers), humbly desiring him to take upon him the 
administration of public affairs, and the disposal of the revenue, un- 
til the meeting of a convention to be called. They further humbly 
desired him to cause letters to be written, subscribed by himself, to 
the lords spiritual and temporal, being Protestants, and to the sev- 
eral counties, universities, cities, boroughs, and Cinque Ports — the 
letters to the counties to be directed to the coroners or clerks of the 
peace; of the universities, to the chancellors; and of the cities 
and boroughs, to the chief magistrates — directing them to choose, 
within ten days, such a number of persons to represent them, as 
were of right to be sent to Parliament. They were required to 
meet at Westminster, on the 22d of January, 1688. The conven- 
tion met accordingly, and both houses agreed to an address, that the 
prince should take upon himself the government, which by a mes- 
sage he consented to do. The Commons next proceeded to settle 
the basis of the future monarchy. 

The converse theory to that of the divine right of kings is, that 



BILL OF RIGHTS. ACT OF SETTLEMENT. 385 

kings reign by virtue of a contract, theoretically assumed to have 
been made between them and the people at the origin of the govern- 
ment — a theory which implies responsibility on the part of the king, 
and a remedy in the people if the king violate the assumed contract. 
The first step of the House of Commons, in which the Whig party 
was predominant, was to assert that principle in the following 
resolution : 

" That Kino; James II., having endeavored to subvert the con- 
stitution of the kingdom, by breaking the original contract between 
king and people, and having, by the advice of Jesuits and other 
wicked persons, violated the fundamental laws, and withdrawn him- 
self out of the kingdom, has abdicated the government, and that the 
throne is thereby vacant." 

The resolution was the work of only one day, and it passed with- 
out a division of the house. It was carried to the Lords, for their 
concurrence, on the 28th of January, by Mr. Hampden, the grand- 
son of him of the same name who first shook the prerogative of 
the Stuart kings. 

The Lords took the resolution into consideration in a committee 
of the whole house, and afterwards communicated to the Commons 
that they concurred in it, with two amendments. Instead of " abdi- 
cated " they would have " deserted " put in, and they would have the 
words " and that the throne is thereby vacant," left out. Con- 
ferences followed, the second being a free conference, in which the 
resolution was debated, orally, by the managers of the respective 
houses. The Lords, on the 7th of February, signified to the Commons 
that they had agreed to the vote without any alterations. 

The crown was settled, by both houses, on William and Mary, 
jointly during their lives, and on the survivor ; the administration 
of the government being committed to William alone during his life. 
The principles of the futfore government were embodied in the cele- 
brated Declaration of Rights, which was presented to William and 
Mary, seated on the throne, at Whitehall, in the presence of both 
houses of Parliament, by the speaker of the House of Lords, on the 
13th of February, 1688. On that day they became, and were pro- 
claimed, king and queen of England, deriving their authority from 
the joint declaration of the lords and commons, and holding the 
17 



386 JAMES II. THE EE VOLUTION. 

crown on the principles and subject to the limitations prescribed in 
the Declaration or Bill of Rights. The substance of this celebrated 
declaration is as follows : 

" Whereas the late King James II., by the assistance of divers 
evil counsellors, judges, and ministers employed by him, did en- 
deavor to subvert and extirpate the Protestant religion, and the 
laws and liberties of this kingdom, 

" 1. By assuming and exercising a power of dispensing with and 
suspending of laws, and the execution of laws, without the consent 
of Parliament. 

" 2. By the committing and prosecuting divers worthy prelates, 
for humbly petitioning to be excused from concurring to the said 
assumed power. 

" 3. By issuing and causing to be executed a commission under 
the great seal for erecting a court called the Court of Commissioners 
for Ecclesiastical Causes. 

" 4. By levying money for and to the use of the crown, by pre- 
tence of prerogative, for other time, and in other manner, than the 
same was granted by Parliament. 

" 5. By raising and keeping a standing army within this king- 
dom in time of peace, without consent of Parliament, and quartering 
soldiers contrary to law. 

" 6. By causing several good subjects, being Protestants, to be 
disarmed, at the same time when Papists were both armed and em- 
ployed, contrary to law. 

"7. By violating the freedom of election of members to serve in 
Parliament. 

" 8. By prosecutions in the Court of King's Bench, for matters 
and causes cognizable only in Parliament ; and by divers other ar- 
bitrary and illegal courses. 

" 9. And whereas of late years partial, corrupt, and unqualified 
persons have been returned and served on juries in trials, and par- 
ticularly divers jurors in trials for high treason, which were not free- 
holders ; 

"10. And excessive bail hath been required of persons com- 
mitted in criminal causes, to elude the benefit of the laws made for 
the liberty of the subjects ; 



BILL OF EIGHTS. ACT OF SETTLEMENT. 387 

" 11. And excessive fines have been imposed ; and illegal and 
cruel punishments inflicted ; 

" 12. And several grants and promises made of fines and for- 
feitures, before any conviction or judgment against the persons upon 
whom the same were to be levied ; 

" All which are utterly and directly contrary to the known laws 
and statutes and freedom of this realm." 

The declaration then recites the abdication of the throDe by 
James II., the summoning of the convention held on the 22d of 
January, 1688, and that the lords spiritual and temporal, and Com- 
mons, did in the first place (as their ancestors in like case had usually 
done), for the vindicating and asserting their ancient rights and 
liberties, declare : 

" 1. That the pretended power of suspending of laws, or the 
execution of laws, by royal authority, without consent of Parliament, 
is illegal. 

" 2. That the pretended power of dispensing with laws, or the 
execution of laws, by regal authority, as it hath been assumed and 
exercised of late, is illegal. 

" 3. That the commission for erecting the late Court of Commis- 
sioners for Ecclesiastical Causes, and all other courts and commis- 
sions of like nature, are illegal and pernicious. 

" 4. That levying money for or to the use of the crown by pre- 
tence of prerogative, without grant of Parliament, for longer time, 
or in any other manner than the same is or shall be granted, is 
illegal. 

" 5. That it is the right of the subjects to petition the king, 
and all commitments and prosecutions for such petitioning are ille- 
gal. 

" 6. That the raising or keeping a standing army within the 
kingdom in time of peace, unless it be with consent of Parliament, 
is against law. 

" 7. That the subjects which are Protestants may have arms for 
their defence suitable to their conditions, and as allowed by 
law. 

" 8. That election of members of Parliament ought to be free. 

" 9. That the freedom of speech, and debates or proceedings in 



388 JAMES II. THE REVOLUTION. 

Parliament, ought not to be impeached or questioned in any court 
or place out of Parliament. 

" 10. That excessive bail ought not to be required, nor excessive 
fines imposed ; nor cruel and unusual punishments inflicted. 

" 11. That jurors ought to be duly empanelled and returned; 
and jurors which pass upon men in trials for high treason, ought 
to be freeholders. 

" 12. All grants and promises of fines and forfeitures of particu- 
lar persons before conviction, are illegal and void. 

" 13. And for redress of all grievances, and for the amending, 
strengthening, and preserving of the laws, parliaments ought to be 
held frequently." 

The convention on the same day passed an act which declared 
that the Lords spiritual and temporal, and Commons, convened at 
Westminster on the 22d of January, 1688, and there sitting on the 
13th of February following, were the two houses of Parliament, 
notwithstanding any defect of form. It repealed the old oaths of 
allegiance and supremacy required to be taken by members of the 
houses of Parliament, and substituted a new oath of allegiance to 
King William and Queen Mary, and acknowledging their suprema- 
cy. It also passed an act for establishing a coronation oath. Thus 
the great event in English history, and change in the constitution 
and dynasty — the Revolution — was complete. 

Queen Mary died in 1694, and the son of her sister Anne hav- 
ing also died, all hope was lost of the succession to the crown taking 
place in the course provided by the Bill of Rights. In 1704, there- 
fore, the Act of Settlement was passed, by which the Princess 
Sophia, electress and duchess-dowager of Hanover — daughter of 
Elizabeth, late queen of Bohemia, and granddaughter of James I. 
— was declared to be the next in succession to the throne in the 
Protestant line ; and after the death of William, and of the Princess 
Anne of Denmark, and in default of issue of Anne and William, 
the crown was settled on the Princess Sophia, and the heirs of her 
body, leing Protestants. 

By the course of events the crown passed to her son George I., 
then elector of Hanover, and the wise foresight of our ancestors in 
the provisions made, became manifest when the throne actually 



BILL OF EIGHTS. ACT OF SETTLEMENT. 389 

passed to a king not a native of the kingdom, and being a sover- 
eign of another country. The provisions of the Act of Settlement, 
which are declared to be " for securing our religion, laws, and liber- 
ties," are as follows : 

" Whosoever shall hereafter come to the possession of this 
crown, shall join in communion with the Church of England, as by 
law established. 

" In case the crown and imperial dignity of this realm shall here- 
after come to any person not being a native of this kingdom of Eng- 
land, this nation be not obliged to engage in any war for the de- 
fence of any dominions or territories which do not belong to the 
crown of England, without the consent of Parliament. 

u No person who shall hereafter come to the possession of this 
crown shall go out of the dominions of England, Scotland, or Ire- 
land, without consent of Parliament. 

" From and after the time that the further limitation by this act 
shall take effect, all matters and things relating to the well govern- 
ing of this kingdom, which are properly cognizable in the privy 
council by the laws aud customs of this realm, shall be transacted 
there, and all resolutions taken thereupon shall be signed by such 
of the privy council as shall advise and consent to the same. 

" After the limitation shall take effect as aforesaid, no person born 
out of the dominions of England, Scotland, or Ireland, or the do- 
minions thereunto belonging (although he be naturalized or made a 
denizen), except such as are born of English parents, shall be capa- 
ble to be of the privy council, or a member of either house of 
Parliament, or to enjoy any office or place of trust, either civil or 
military, or to have any grant of lands or tenements or heredita- 
ments from the crown to himself, or to any other or others in trust 
for him. 

" No person who has an office or place of profit under the kino-, or 
receives a pension from the crown, shall be capable of serving as a 
member of the House of Commons. 

" After the limitation shall take effect as aforesaid, judges' com- 
missions be made quamdiu se bene gesserint, and their salaries ascer- 
tained and established ; but upon the address of both houses of 
Parliament, it may be lawful to remove them. 



390 JAMES II. THE EE VOLUTION. 

" That no pardon under the great seal of England be pleadable to 
an impeachment by the Commons in Parliament." 

The Declarations of Rights and the Act of Settlement may be 
considered as the complement of Magna Charta and the Petition of 
Right, in declaring and fixing the prerogatives of the crown, and the 
rights of the people in relation to the crown. Since the Act of 
Settlement there has been no statute expressly directed to curb the 
royal prerogative ; but the executive power of the crown has been 
diminished by the growth of the power of Parliament — especially of 
the House of Commons — and the establishment of the system of 
parliamentary government. That system has silently grown up 
since the Revolution, and at its root lies the maxim — that all the 
acts of the crown must be advised and transacted by ministers re- 
sponsible to Parliament. 

The Revolution terminated the contest between prerogative and 
freedom, and settled the basis of a limited monarchy and constitu- 
tional government. From that period the principles laid down in 
the Bill of Rights have never been disputed, although in the changes 
of administration, and under the influence of party spirit, they may 
sometimes have been departed from. They have, however, in our 
times, obtained a solidity which it is to be hoped is unassailable ; 
and they have been confirmed and added to by, for the most part, a 
course of wise, enlightened, and impartial legislation, by which the 
security of the throne has been increased, and the rights and liber- 
ties of the people maintained and enlarged. 



ill of Ei^ljt©. 



An Act declaring the Rights and Liberties of the Subject, and set- 
tling the Succession of the Crown. 

"Whereas the Lords Spiritual and Temporal, and Commons, as- 
sembled at Westminster, lawfully fully and freely representing all the 
Estates of the People of this Realm, did, upon the thirteenth Day 
of February in the Year of our Lord one thousand six hundred 
and eighty-eight, present unto their Majesties, then called and known 
by the Names and Stile of William and Mart), Prince and Princess 
of Orange, being present in their proper Persons, a certain Decla- 
ration in Writing, made by the said Lords and Commons, in the 
Words following ; viz. 

" Whereas the late King James the Second, by the assistance 
of divers evil Counsellors, Judges and Ministers employed by him, 
did endeavor to subvert and extirpate the Protestant Religion, and 
the Laws and Liberties of this Kingdom. 

" 1. By assuming and exercising a Power of dispensing with 
and suspending of Laws, and the Execution of Laws, without 
Consent of Parliament. 

" 2. By committing and prosecuting divers worthy Prelates, for 
humbly petitioning to be excused from concurring to the said as- 
sumed Power. 

" 3. By issuing and causing to be executed a Commission under 
the Great Seal for erecting a Court called, The Court of Commis- 
sioners for Eclesiastical Causes. 

" 4. By levying Money for and to the Use of the Crown, by 



392 BILL OF EIGHTS. 

Pretence of Prerogative, for other Time, and in other Manner, 
than the same was granted by Parliament. 

" 5. By raising and keeping a Standing Army within the King- 
dom in Time of Peace, without Consent of Parliament, and quar- 
tering Soldiers contrary to Law. 

" 6. By causing several good Subjects, being Protestants, to 
be disarmed, at the same Time when Papists were both armed and 
employed, contrary to Law. 

" 7. By violating the Freedom of Election of Members to serve 
in Parliament. 

" 8. By Prosecutions in the Court of King's Bench, for Matters 
and Causes cognizable only iu Parliament ; and by divers other 
arbitrary and illegal Courses. 

" 9. And whereas of late Years, partial, corrupt and unquali- 
fied Persons, have been returned and served on Juries in Trials, 
and particularly divers Jurors in Trials for High Treason, which 
were not Free-holders. 

" 10. And excessive Bail hath been required of Persons commit- 
ted in criminal Cases, to elude the Benefit of the Laws made for the 
Liberty of the Subjects. 

"11. And excessive Fines have been imposed ; and illegal and 
cruel Punishments inflicted. 

" 12. And several Grants and Promises made of Fines and For- 
feitures, before any Conviction or Judgment against the Persons, 
upon whom the same were to be levied. 

" All of which are utterly and directly contrary to the known 
Laws and Statutes, and Freedom of this Bealm. 

" And whereas the said late King James the Second having abdi- 
cated the Government, and the Throne being thereby vacant, his 
Highness the Prince of Orange (whom it hath pleased Almighty God 
to make the glorious Instrument of delivering this Kingdom from 
Popery and arbitrary Power) did (by the Advice of the Lords 
Spiritual and Temporal, and divers principal Persons of the Com- 
mons) cause Letters to be written to the Lords Spiritual and Tem- 
poral, being Protestants ; and other Letters to the several Counties, 
Cities, Universities, Boroughs, and Cinque-ports, for the choosing 
of such persons to represent them, as were of right to be sent to 



BILL OF EIGHTS. 393 

Parliament, to meet and sit at Westminster upon the two and twen- 
tieth Day of January in this Year one thousand six hundred eighty 
and eight, in order to such an Establishment, as that their Religion, 
Laws, and Liberties might not again be in Danger of being sub* 
verted : upon which Letters, Elections having been accordingly 
made, 

" And thereupon the said Lords Spiritual and Temporal, and 
Commons, pursuant to their respective Letters and Elections, 
being now assembled in a full and free Representative of this 
Nation, taking into their most serious Consideration the best 
Means for attaining the Ends aforesaid ; do in the first Place (as 
their Ancestors in like Case have usually done) for the vindicating 
and asserting their ancient Rights and Liberties declare : 

" 1. That the pretended Power of suspending of Laws, or the 
Execution of Laws, by regal Authority, without Consent of Parlia- 
ment, is illegal. 

" 2. That the pretended Power of dispensing with Laws or the 
Execution of Laws, by regal Authority, as it hath been assumed 
and exercised of late, is illegal. 

" 3. That the Commission for erecting the late Court of Com- 
missioners for Eclesiastical Causes, and all other Commissions and 
Courts of like Nature, are illegal and pernicious. 

11 4. That levying Money for or to the Use of the Crown, by 
Pretence of Prerogative, without Grant of Parliament for longer 
Time, or in other Manner than the same is or shall be granted, is 
illegal. 

" 5. That it is the Right of the Subjects to petition the King, 
and all Commitments and Prosecutions for such Petitioning are 
illegal. 

"6. That the raising or keeping a Standing Army within the 
Kingdom in Time of Peace, unless it be with Consent of Parlia- 
ment, is against Law. 

11 7. That the Subjects which are Protestants, may have arms 
for their defence suitable to their conditions and as allowed by 
Law. 

" 8. That Election of Members of Parliament ought to be free. 

" 9. That the Freedom of Speech, and Debates or Proceedings 
17* 



394 BELL OF EIGHTS. 

in Parliament, ought not to be impeached or questioned in any 
Court or Place out of Parliament. 

" 10. That excessive Bail ought not to be required, nor exces- 
sive Fines imposed ; nor cruel and unusual Punishments inflicted. 

" 11. That Jurors ought to be duly impanelled and returned, 
and Jurors which pass upon Men in Trials for High Treason ought 
to be Freeholders. 

" 12. That all Grants and Promises of Fines and Forfeitures of 
particular Persons before Conviction, are illegal and void. 

" 13. And that for Redress of all Grievances, and for the 
amending, strengthening, and preserving of the Laws, Parliaments 
ought to be held frequently. 

" And they do claim, demand, and insist upon all and singular 
the Premisses, as their undoubted Rights and Liberties ; and that 
no Declarations, Judgments, Doings, or Proceedings, to the Preju- 
dice of the People in any of the said Premisses, ought in any wise 
to be drawn hereafter into Consequence or Example. 

" To which Demand of their Rights they are particularly en- 
couraged by the Declaration of his Highness the Prince of Orange, 
as being the only Means for obtaining a full Redress and Remedy 
therein. 

li Having therefore an entire Confidence, that his said Highness 
the Prince of Orange will perfect the Deliverance so far advanced 
by him, and will still preserve them from the Violation of their 
Rights, which they have here asserted, and from all other Attempts 
upon their Religion, Rights and Liberties, 

" II. The said Lords Spiritual and Temporal, and Commons, 
assembled at Westminster, do resolve, That William and Mary, 
Prince and Princess of Orange, be, and be declared King and 
Queen of England, France and Ireland, and the Dominions there- 
unto belonging, to hold the Crown and Royal Dignity of the said 
Kingdoms and Dominions to them and the said Prince and Prin- 
cess during their Lives, and the Life of the Survivor of them ; and 
that the soje and full Exercise of the Regal Power be only in, and 
executed by the said Prince of Orange, in the Names of the said 
Prince and Princess, during their joint Lives ; and after their 
Deceases, the said Crown and Royal Dignity of the said Kingdoms 



BILL OF RIGHTS. 395 

and Dominions to be to the Heirs of the Body of the said Princess, 
and for Default of such Issue to the Princess Anne of Denmark, 
and the Heirs of her Body ; and for Default of such Issue to the 
Heirs of the Body of the said Prince of Orange. And the Lords 
Spiritual and Temporal, and Commons, do pray the said Prince 
and Princess to accept the same accordingly. 

" III. And that the oaths hereafter mentioned be taken by all 
Persons of whom the Oaths of Allegiance and Supremacy might be 
required by Law, instead of them ; and that the said Oaths of 
Allegiance and Supremacy be abrogated. 

" I, A. B., do sincerely promise and swear. That I will be 
faithful and bear true Allegiance, to their Majesties King William 
and Queen Mary. So help me God. 

" I, A. B., do swear, That I do from my Heart abhor, detest, 
and abjure, as impious and heretical, that damnable Doctrine and 
Position, Thai Princes excommunicated or deprived by the Pope, or 
any Authority of the See of Rome, may he deposed or murdered by their 
Subjects, or any other ivhatsoever. And I do declare that no foreign 
Prince, Person, Prelate, State or Potentate hath, or ought to have, 
any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, 
Ecclesiastical or Spiritual, within this Realm. So help me God.'' 1 

IV. Upon which their -Majesties did accept the Crown and 
Royal Dignity of the Kingdoms of England, France and Ireland, and 
the Dominions thereunto belonging, according to the Resolution 
and Desire of the said Lords and Commons contained in the said 
Declaration. 

V. And thereupon their Majesties were pleased, That the 
said Lords Spiritual and Temporal, and Commons, being the two 
Houses of Parliament, should continue to sit and with their Majes- 
ties' royal Concurrence make effectual Provision for the Settlement 
of the Religion, Laws and Liberties of this Kingdom, so that the 
same for the future might not be in Danger again of being sub- 
verted ; to which the said Lords Spiritual and Temporal, and Com- 
mons, did agree and proceed to act accordingly. 

VI. Now, in pursuance of the Premisses, the said Lords Spir- 
itual and Temporal, and Commons, in Parliament assembled, for 
the ratifying, confirming and establishing the said Declaration, and 



396 BILL GE EIGHTS. 

the Articles, Clauses, Matters, and Things therein contained, by 
the Force of Law made in due Form by Authority of Parliament, 
do pray that it may be declared and enacted, That all and singular 
the Rights and Liberties asserted, and claimed in the said Declara- 
tions, are the true, antient, and indubitable Rights and Liberties 
of the People of this Kingdom, and so shall be esteemed, allowed, 
adjudged, deemed, and taken to be, and that all and every the 
Particulars aforesaid shall be firmly and strictly holden and ob- 
served, as they are expressed in the said Declaration ; and all 
Officers and Ministers whatsoever shall serve their Majesties and 
their Successors according to the same in all Times to come. 

VII. And the said Lords Spiritual and Temporal, and Com- 
mons, seriously considering how it hath pleased Almighty God, in 
His marvellous Providence, and merciful Goodness to this Nation, 
to provide and preserve their said Majesties 1 royal Persons most 
happily to reign over us upon the throne of their Ancestors, for 
which they render unto him from the Bottom of their Hearts their 
humblest Thanks and Praises, do truly, firmly, assuredly, and in 
the Sincerity of their Hearts think, and do hereby recognize, 
acknowledge and declare, That King James the Second, having 
abdicated the Government, and their Majesties' having accepted 
the Grown and royal Dignity as aforesaid, their said Majesties did 
become, were, are, and of right ought to be, by the Laws of this 
Realm, our Sovereign Liege Lord and Lady, King and Queen of 
England, France and Ireland, and the Dominions thereunto belong- 
ing, in and to whose princely Persons the royal State, Crown, and 
Dignity of the said Realms, with all Honours, Stiles, Titles, Regal- 
ities, Prerogatives, Powers, Jurisdictions, and Authorities, to the 
same belonging and appertaining, are most fully, rightfully, and 
entirely invested and incorporated, united and annexed. 

VIII. And for preventing all Questions and Divisions in this 
Realm, by Reason of any pretended Titles to the Crown, and for 
preserving a Certainty in the Succession thereof, in and upon which 
the Unity, Peace, Tranquillity, and Safety of this Nation doth, 
under God, wholly consist and depend, The said Lords Spiritual 
and Temporal, and Commons, do beseech their Majesties that it 
may be enacted, established and declared, That the Crown and 



BILL OF RIGHTS. 39V 

regal Government of the said Kingdoms and Dominions with all 
and singular the premisses thereunto belonging and appertaining, 
shall be and continue to their said Majesties, and the Survivor, 
during their Lives, and the Life of the survivor of them : And that 
the entire, perfect, and full Exercise of the Regal Power and Gov- 
ernment be only in, and executed by his Majesty, in the Names of 
both their Majesties during their joint lives ; and after their 
Deceases the said Crown and Premisses shall be and remain to the 
Heirs of the Body of her Majesty ; and for Default of such Issue, 
to her Royal Highness, the Princess Anne of Denmark, and the 
Heirs of her Body ; and for Default of such Issue, to the Heirs of 
the Body of his said Majesty : And thereunto the said Lords Spir- 
itual and Temporal, and Commons, do, in the Name of all the 
People aforesaid, most humbly and faithfully submit themselves, 
their Heirs and Posterities for ever ; and do faithfully promise, 
That they will stand to, maintain, and defend their said Majesties, 
and also the Limitation and Succession of the Crown herein speci- 
fied and contained, to the utmost of their Powers, with their Lives 
and Estates, against all Persons whatsoever, that shall attempt any 
Thing to the contrary. 

IX. " And whereas it hath been found by Experience, that it 
is inconsistent with the Safety and Welfare of this Protestant 
Kingdom, to be governed by a Popish Prince, or by any King or 
Queen marrying a Papist ; " the said Lords Spiritual and Temporal, 
and Commons, do further pray that it may be enacted, That all and 
every Person and Persons that is, are, or shall be, reconciled to, or 
shall hold Communion with, the See or Church of Rome, or shall 
profess the Popish Religion, or shall marry a Papist, shall be ex- 
cluded, and be forever incapable to inherit, possess, or enjoy the 
Crown and Government of this Realm, and Ireland, and the Domin- 
ions thereunto belonging, or any part of the same, or to have, use 
or exercise any regal Power, Authority or Jurisdiction within the 
same ; and in all and every such Case or Cases the People of these 
Realms shall be, and are hereby absolved of their Allegiance ; and 
the said Crown and Government shall from time to time descend 
to, and be enjoyed by such Person or Persons, being Protestants, as 
should have inherited and enjoyed the same, in case the said Per- 



398 BILL OF EIGHTS. 

son or Persons so reconciled, holding Communion, or professing, or 
marryiDg as aforesaid, were naturally dead. 

X. And that every King and Queen of this Realm, who at any 
Time hereafter shall come to and succeed in the Imperial Crown of 
this Kingdom, shall on the first Day of the Meeting of the first 
Parliament, next after his or her coming to the Crown, sitting in 
his or her Throne in the House of Peers, in the Presence of the 
Lords and Commons therein assembled, or at his or her Coronation, 
before such Person or Persons who shall administer the Coronation 
Oath to him or her, at the Time of his or her taking the said Oath 
(which shall first happen) make, subscribe, and audibly repeat the 
Declaration mentioned in the Statute made in the thirtieth year of 
the Reign of King Charles the Second, intituled, An Act for the 
more effectual preserving the King^s Person and Government, ly disa- 
Uing Papists from sitting in either Souse of Parliament. But if it shall 
happen, that such King or Queen, upon his or her Succession to 
the Crown of this Realm, shall be under the Age of twelve Years, 
then every such King or Queen shall make, subscribe, and audibly 
repeat the said Declaration at his or her Coronation, or the first Day 
of the Meeting of the first Parliament as aforesaid, which shall first 
happen after such King or Queen shall have attained the said Age 
of twelve Years. 

XI. All which their Majesties are contented and pleased shall 
be declared, enacted and established by authority of this present 
Parliament, and shall stand, remain, and be the Law of this 
Realm for ever ; and the same are by their said Majesties, by 
and with the Advice and Consent of the Lords Spiritual and 
Temporal, and Commons, in Parliament assembled, and by the 
Authority of the same, declared, enacted and established accord- 
ingly. 

XII. And be it further declared and enacted by the Au- 
thority aforesaid, That from and after this present Session of 
Parliament, no dispensation by Non obstante of or to any Statute, 
or any Part thereof, shall be allowed, but that the same shall be 
held void and of no Effect, except a dispensation be allowed of 
in such Statute, and except in such Cases as shall be specially 



BILL OF RIGHTS. 399 

provided by one or more Bill or Bills to be passed during 
this present Session of Parliament. 

XIII. Provided that no Charter, or Grant, or Pardon, granted 
before the three-and-twentieth day of October, in the Year of our 
Lord one thousand six hundred and eighty-nine, shall be any 
ways impeached or invalidated by this Act, but that the same 
shall be and remain of the same Force and Effect in Law, and 
no other, than as if this Act had never been made. 



&tf of 0etUemeni. 



[The Act of Settlement (Xn. and XIII. William III., Cap. II.) provided that 
on the decease, without heirs, of William and the Princess Anne of Denmark, the 
succession to the throne of England should devolve upon the Princess Sophia, 
Electress and Duchess-Dowager of Hanover, grand-daughter of James I. This 
act, which it is unnecessary to give entire, is entitled, " An Act for the further 
Limitation of the Crown, and better securing the Rights and Liberties of the 
Subject." The following are its constitutional provisions :] 



Whereas, it is requisite and necessary that some further Pro- 
vision be made for securing our Religion, Laws and Liberties, 
from and after the Death of his Majesty and the Princess Anne 
of Denmark, and in Default of Issue of the Body of the said 
Princess, and of his Majesty respectively ; Be it enacted by the 
King's most Excellent Majesty, by and with the Advice and 
Consent of the Lords Spiritual and Temporal, and Commons, in 
Parliament assembled, and by the Authority of the same, 

" That whosoever shall hereafter come to the Possession of the 
Crown, shall join in Communion with the Church of England, as 
by Law established. 

" That in case the Crown and Imperial Dignity of this Realm 
shall hereafter come to any person, not being a native of this 
Kingdom of England, this Nation be not obliged to engage in any 
War for the Defence of any Dominions or Territories which do 
not belong to the Crown of England, without the Consent of 
Parliament. 

" That no Person who shall hereafter come to the Posses- 



ACT OF SETTLEMENT. 401 

sion of this Crown, shall go out of the Dominion of England, 
Scotland, or Ireland, without the Consent of Parliament. 

" That from after the Time that the further Limitation by 
this Act shall take Effect, all Matters and Things relating to 
the well governing cf this Kingdom, which are properly cognizable 
in the Privy Council by the Laws and Customs of this Realm, 
shall be transacted there, and all Resolutions taken thereupon 
shall be signed by such of the Privy Council as shall advise and 
consent to the same. 

" That after said Limitation shall take Effect as aforesaid, no 
Person born out of the Kingdoms of England, Scotland, or Ireland, 
or the Dominions thereunto belonging (although he be naturalized 
or made a Denizen, except such as are born of English Parents), 
shall be capable to be of the Privy Council, or a Member of 
either House of Parliament, or to enjoy any Office or Place of 
Trust, either Civil or Military, or to have any Grant of Lands, 
Tenements, or Hereditaments from the Crown, to himself or to 
any other or others in Trust for him. 

" That no Person who has an Office or Place of Profit under 
the King, or receives a Pension from the Crown, shall be capable 
of serving as a Member of the House of Commons. 

u That after the said Limitation shall take Effect as afore- 
said, Judges' Commissions be made Quamdiu se bene gesserint, and 
their Salaries ascertained and established ; but upon the Address 
of both Houses of Parliament it may be lawful to remove 
them. 

" That no Pardon under the Great Seal of England be plead- 
able to an Impeachment by the Commons in Parliament. 

" And whereas the Laws of England are the Birth-right of 
the People thereof, and all the Kings and Queens, who shall 
ascend the Throne of this Realm, ought to administer the Govern- 
ment of the same according to the said Laws, and all their Offi- 
cers and Ministers ought to serve them respectively according 
to the same " — The said Lords Spiritual and Temporal, and 
Commons, do therefore further humbly pray, That all the Laws 
and Statutes of this Realm for securing the established Religion, 
and the Rights and Liberties of the People thereof, and all 



402 ACT OF SETTLEMENT. 

other Laws and Statutes of the same now in Force, may be rati- 
fied and confirmed, and the same are by his Majesty, by and with 
the Advice and Consent of the Lords Spiritual and Temporal, 
and Commons, and by Authority of the same, ratified and con- 
firmed accordingly. 



CHAPTEE XIII. 

COLONIAL CONSTITUTIONS. 

INTRODUCTORY OBSERVATIONS CONSTITUTIONAL POSITION OF THE COLONISTS LAW 

OF NATIONS ON THE SUBJECT OF COLONIAL SETTLEMENTS : IN COUNTRIES HAY- 
ING LAWS AND CONSTITUTIONS ; IN COUNTRIES NOT HAVING LAWS AND CONSTI- 
TUTIONS — APPLICATION OF IT TO THE COLONIES — THEIR INTERIOR POLITICS — 
PROVINCIAL ESTABLISHMENTS — PROPRIETARY GOVERNMENTS — CHARTER GOV- 
ERNMENTS MIXED GOVERNMENT CONSTITUTIONS OF THE COLONIES — VIRGINIA 

PLYMOUTH COLONIES — MASSACHUSETTS — NEW HAMPSHIRE — MAINE — CONNEC- 
TICUT — RHODE ISLAND — MARYLAND NEW YORK NEW JERSEY — PENNSYL- 
VANIA — DELAWARE NORTH AND SOUTH CAROLINA — GEORGIA. 

We have now come to a period at which the justice and enlight- 
enment of England were to be submitted to severe tests. After a 
contest of four hundred and seventy-three years, extending from 
the day of Runnymede to the revolution which dethroned the Stuart 
dynasty, the rights and liberties of every English subject were at 
length secured by constitutional checks upon the royal power, and 
by a Parliament in which one house, composed of freely chosen 
popular representatives, was vested with the power of hindering 
legislation which might be injurious to the people. The rights of 
person and of property were now secure in England. It remained 
to be determined whether Englishmen, in the enjoyment of these 
rights at home, would stand by and support their fellow subjects in 
maintaining and defending them in the colonial settlements of North 
America. 

The colonies had been permanently established under various 
auspices during the troubled reigns of the unhappy Stuarts and the 
earlier monarchs who succeeded them — apparently an unpropitious 
period for founding governments. Until the Revolution it was 
doubtful whether absolute or constitutional authority would prevail 



404 COLONIAL CONSTITUTIONS. 

in England; and although the monarchy, as regulated by the Bill 
of Rights and Act of Settlement, was afterwards so limited as to 
protect the subject from the encroachments of prerogative at home, 
yet of the constitutional relations of colonial dependencies to the 
mother country and the crown there still appeared to be no very clear 
intelligence, as there was certainly no authoritative exposition. 
Yet the English colonists of North America were clear on one 
point. They maintained that all the ancient rights and liberties of 
Englishmen were theirs by birthright ; that to them, as much as 
to the Englishmen at home, belonged the guarantees of Magna 
Charta, and at a later date, of the Petition and the Bill of Bights ; 
that in removing from their native land to its colonial possessions, 
they had sacrificed no portion of their ancient rights ; and that, as 
Englishmen, they were entitled still to be protected by the guaran- 
tees of liberty which covered them before their emigration. 

The law of nations, in the matter of colonial settlements, was 
altogether in their favor. There are, in general, two cases, which 
may be briefly stated as follows : 

1. If the territory to be colonized is uninhabited, or only occu- 
pied by savages or wandering tribes, so that the country is without 
established laws or government, then the Government of which the 
colonists are subjects is immediately supreme, and all its laws, both 
for the regulation and for the protection of its subjects, are at once 
in force so far as they are applicable to the situation and condition 
of an infant colony. The artificial refinements and distinctions, 
says Blackstone, " incident to a great and commercial people, are 
neither necessary nor convenient for them, and therefore are not in 
force." What shall be admitted and what rejected, at what times 
and under what restrictions, must be decided by the joint action of 
their own provincial judicature, when established, and the sovereign 
power of which they are the subjects. There must thus be a divi- 
sion of the functions of supreme power ; and in this, like every 
other instance of divided sovereignty, the relations of the provin- 
cial to the parent government will often be extremely delicate. But 
the status of the people is determined from the first. They remain 
the subjects of the parent Government, and being governed by the 
same laws, they are bound by the same obligations and invested 



COLONIAL CONSTITUTIONS. 405 

with the same rights as before their emigration. The peculiar dif- 
ficulty of such colonies is this, that laws by which the obligations 
of the subjects are defined will seem to be immediately in force, 
while institutions made for the security of rights, being not yet es- 
tablished in the colony, or at best imperfectly established, will be 
insufficient to protect the colouist in their enjoyment ; and in every 
such case justice will require the spirit of the laws to be regarded 
rather than the letter. A discretionary application of laws is 
always dangerous. The tendency of governments is always to en- 
croach upon the franchise of the subject; and the tendency in 
colonies is always to complete autonomy ; so that a conflict is inev- 
itable if the former fail to put a liberal construction on colonial 
rights, or if the latter fail duly to recognize colonial obligations. 
When so much is left to human wisdom, virtue, and forbearance, 
history affords but little reason to expect a happy issue. 

2. The second case is when a colony is to be planted in a con- 
quered or ceded country which already has a code of laws, and 
governmental institutions for their execution. By the law of na- 
tions conquest gives to the victorious power an absolute authority 
over his conquered enemies, to whom, therefore, the conqueror's 
will becomes the only source of law ; but this, " in reason and civil 
policy, can mean nothing more than that, in order to put an end to 
hostilities, a compact is either expressly or tacitly made between 
the conqueror and the conquered, that if they will acknowledge the 
victor for the master, he will treat them for the future as subjects, 
and not as enemies." (Blackstone, Com. i. 103.) Cession of ter- 
ritory, when no stipulations to the contrary are made, conveys as 
absolute a sovereignty as conquest. Therefore, in a conquered or 
ceded country that has already laws of its own, the sovereign has a 
right to alter or abolish the existing laws ; but till he actually does 
change or abolish them, they remain in full force over the inhabit- 
ants ; and any of his subjects, colonists, or others who may settle 
in the conquered or ceded country, fall likewise under their control. 
In this case, if a colony be planted, there is little likelihood of con- 
flict with the -parent Government. The rights and obligations of 
the colonists being only such as it prescribes, immunities and privi- 
leges emanating solely from its gift, and it alone giving protection 



406 COLONIAL CONSTITUTIONS. 

against the natives, who may always be supposed to be inclined to 
win their freedom by rebellion — interest and the instinct of self- 
preservation equally impel him to sustain the sovereign power. At 
all events the government is simple. Despotism, and this under 
any form, is despotism, admits no conflicts of authority or jurisdic- 
tion, knows no rights but those it chooses to respect, and recog- 
nizes nothing in the subject but his obligation of obedience. 

3. The distinction between the two cases is clear. In the 
former, when a country having no established laws is occupied by 
colonists, they bring with them in fall vigor all the laws of their 
own country, so far as those laws are applicable to colonial circum- 
stances. In the latter, where a country having legal institutions 
falls by conquest, all existing laws remain till they are changed or 
abrogated by the conqueror ; and colonists or settlers in the subju- 
gated country are equally with the natives under the supreme will 
of the subjugating power. Now, in the country occupied by the 
American colonies there were no laws for the government of civil- 
ized society, because among the Indian aborigines no civilized soci- 
ety existed. From the foundation, therefore, of the colonies, the 
laws of England were in force in every one of them, and with those 
laws the rights as well as duties of the subjects of the English 
crown. 

The colonists of North America never lost sight of this. All 
the anomalies and inconveniences of an ill-regulated colonial system 
were powerless to alienate them from the English crown. It was 
their pride that they were Englishmen ; their ancient bonds and 
memories were all in England; but above all things else, their 
rights aud liberties were of English growth, and it was as English- 
men they claimed to hold them. Some cause of dissatisfaction 
they might have and did have with the Government at home ; but 
in this they suffered only with their fellow subjects from the crown 
during the troubled period of the Stuarts. It was not till later 
that their fellow subjects joined the crown in the oppression of the 
colonies by acts of Parliament, and during the period of trial the 
Americans could only look with sympathy upon the struggle between 
royalty and commons' rights, glorying in the triumph of the people, 



COLONIAL CONSTITUTIONS. 407 

or lamenting the fanaticism which sometimes turned their triumph 
into cause for grief. 

With these preliminary observations we may now proceed to 
give a sketch of the constitutional history of the thirteen colonies. 
As to their interior polity, the colonies were properly of three 
sorts : 

1. Provincial establishments, in which the governor and council 
were appointed by the crown. In these the constitutions depended 
on the respective commissions and instructions issued by the crown 
to the governors ; under the authority of which provincial assem- 
blies, elected by the people, were constituted with the power of 
making laws and ordinances not repugnant to the laws of England. 
Such were the governments of Virginia, New Hampshire, New York, 
Georgia, New Jersey after 1702, and the Carolinas after 1728. 

2. Proprietary governments, granted out to individuals, after the 
manner of feudatory principalities. In these the proprietary was 
practically governor of the province, the assembly being chosen by 
the people. Such were the governments of Maryland and Penn- 
sylvania, and at first of New Jersey and the Carolinas. 

3. Charter governments, in which the governor, council, and 
assembly were chosen by the people. These had the power of local 
legislation, and such other rights and authorities as were specially 
given in their charters of incorporation. To this class belonged 
the governments of the Plymouth Colony, Connecticut, Rhode 
Island, and originally of Massachusetts. 

4. In addition to these, a mixed form of government was adopted 
in Massachusetts, in which the governor only was appointed by 
the crown, the council and assembly being both elected by the 
people. 

Virginia. — The first permanent settlement made in America, 
under the auspices of England, was under a charter to Sir Thomas 
Gates and his associates, by James I., in 1606, which granted to 
them the territories in America then commonly called Virginia 
The associates were divided into two companies. By degrees, the 
name of Virginia was confined to the first or south colony. The 



408 COLONIAL CONSTITUTIONS. 

second assumed the name of the Plymouth Company, and New 
England was founded under their auspices. 

By the tenor of their charter all persons, being English subjects 
and inhabiting in the colonies, and their children born therein, were 
declared to have and possess all liberties, franchises, and immuni- 
ties, within any other of the dominions of the crown, to all intents 
and purposes, as if they had been abiding and born within the realm 
of England, or any other dominions of the crown. The patentees 
were to hold the lands, &c, in the colony, of the king, his heirs and 
successors, as of the manor of East Greenwich in the county of 
Kent, in free and common soccage only, and not in capite ; and were 
authorized to grant the same to the inhabitants of the colonies in 
such manner and form, and for such estates, as the council of the 
colony should direct. 

Each colony was to be governed by a local council, appointed 
and removable at the pleasure of the crown, according to the royal 
instructions and ordinances from time to time promulgated. These 
councils were to be under the superior management and direction 
of another council sitting in England. A power was given to expel 
all intruders, and to lay a limited duty upon all persons trafficking 
with the colony ; but a prohibition was imposed upon all the colo- 
nists against trafficking with foreign countries under the pretence 
of a trade from the mother country to the colonies. 

The settlements in Virginia were earliest in point of date, and 
were fast advancing under a policy which subdivided the property 
among the settlers, instead of retaining it in common, and thus 
give vigor to private enterprise. As the colony increased, the spirit 
of its members assumed more and more the tone of independence; 
and they grew restless and impatient for the privileges enjoyed 
under the government of their native country. To quiet this un- 
easiness, Sir George Yeardley, then the governor of the colony, in 
1619 called a general assembly, composed of representatives from 
the various plantations in the colony, and permitted them to as- 
sume and exercise the high functions of legislation. Thus was 
formed and established the first representative legislature that ever 
sat in America. And this example of a domestic parliament, to 
regulate all the internal concerns of the country, was never lost 



COLONIAL CONSTITUTIONS. 409 

sight of, but was ever afterwards cherished, throughout America, 
as the dearest birthright of freemen. So acceptable was it to the 
people, and so indispensable to the real prosperity of the colony, 
that the council in England were compelled, in 1621, to issue an 
ordinance, which gave it a complete and permanent sanction. In 
imitation of the constitution of the British Parliament, the legis- 
lative power was lodged — partly in the governor, who held the place 
of the sovereign ; partly in a council of state named by the company ; 
and partly in an assembly composed of representatives freely 
chosen by the people. Each branch of the legislature might de- 
cide by a majority of voices, and a negative was reserved to the 
governor. But no law was to be in force, though approved by all 
three of the branches of the legislature, until it was ratified by a 
general court of the company, and returned under its seal to the 
colony. The ordinance further required the general assembly, as 
also the council of state, " to imitate and follow the policy of the 
form of government, laws, customs, and manner of trial and other 
administrations of justice, used in the realm of England, as near 
as may be." 

Charles I. chose to regard and govern his American possessions 
as conquered territories. He declared the colony to be a part of 
the empire annexed to the crown, and immediately subordinate to 
its jurisdiction. During the greater part of his reign, Virginia 
knew no other law than the will of the sovereign or his delegated 
agents ; and statutes were passed, and taxes imposed, without the 
slightest effort to convene a colonial assembly. It was not until 
the murmurs and complaints, which such a course of conduct was 
calculated to produce, had betrayed the inhabitants into acts of 
open resistance to the governor, and into a firm demand of redress 
from the crown against his oppressions, that the king was brought 
to more considerate measures. He did not at once yield to their 
discontents ; but pressed as he was by severe embarrassments at 
home, he was content to adopt a policy which would conciliate the 
colony, and remove some of its just complaints. He accordingly, 
soon afterwards, appointed Sir William Berkeley governor, with 
powers and instructions which breathed a far more benign spirit. 
He was authorized to proclaim that, in all its concerns, civil as 
18 



410 COLONIAL CONSTITUTIONS. 

well as ecclesiastical, the colony should be governed according to the 
laws of England. He was directed to issue writs for electing rep- 
resentatives of the people, who, with the governor and council, 
should form a general assembly clothed with supreme legislative 
authority ; and to establish courts of justice, whose proceedings 
should be guided by the forms of the parent country. The rights 
of Englishmen were thus secured to the colonists. 

The laws of Virginia, during its colonial state, do not exhibit 
as many marked deviations, in the general structure of its institu- 
tions and civil polity, from those of the parent country, as those in 
the northern colonies. The common law was recognized as the 
general basis of its jurisprudence ; and the legislature, with some 
appearance of boast, stated, soon after the restoration of Charles 
II., that they had " endeavored, in all things, as near as the capa- 
city and constitution of this country would admit, to adhere to 
those excellent and often refined laws of England, to which we 
profess and acknowledge all due obedience and reverence." The 
prevalence of the common law was also expressly provided for in 
all the charters successively granted, as well as by the royal decla- 
ration when the colony was annexed as a dependency to the crown. 
Indeed, there is no reason to suppose that the common law was not, 
in its leading features, very acceptable to the colonists ; and in its 
general policy the colony closely followed in the steps of the 
mother country. The trial by jury, although a privilege resulting 
from their general rights, was guarded by special legislation. There 
was also an early declaration that no taxes could be levied by the 
governor without the consent of the general assembly ; and when 
raised, they were to be applied according to the appointment of the 
legislature. The burgesses also, during their attendance upon the 
assembly, were free from arrest. In respect to domestic trade, a 
general freedom was guaranteed to all the inhabitants to buy and 
sell to the greatest advantage, and all engrossing was prohibited. 
The culture of tobacco seems to have been a constant object of 
solicitude ; and it was encouraged by a long succession of acts suf- 
ficiently evincing the public feeling, and the vast importance of it 
to the prosperity of the colony. We learn from Sir William Berke- 
ley's answers to the lord commissioners, in 1671, that the population 



COLONIAL CONSTITUTIONS. 411 

of the colony was at that time about 40,000 ; that the restrictions of 
the navigation act, cutting off all trade with foreign countries, were 
very injurious to them, as they were obedient to the laws. And 
u this (says he) is the cause why no small or great vessels are built 
here ; for we are most obedient to all laws, whilst the New England 
men break through, and men trade to any place that their interest 
leads them." This language is sufficiently significant of the restless- 
ness of New England under these restraints upon its commerce. 
In 1680 a remarkable change was made in the colouial jurispru- 
dence, by taking all judicial power from the assembly, and allowing 
an appeal from the judgments of the General Court to the king in 
council. 

Plymouth Colonies. — Before their landing, on the 11th of No- 
vember, 1620, the Plymouth colonists drew up and signed an 
original compact, in which, after acknowledging themselves subjects 
of the crown of England, they proceed to declare : " Having under- 
taken, for the glory of God, and the advancement of the Christian 
faith, and the honor of our king and country, a voyage to plant the 
first colony in the northern parts of Virginia, we do, by these pres- 
ents, solemnly and mutually, in the presence of God and of one 
another, covenant and combine ourselves together into a civil body 
politic, for our better ordering and preservation, and furtherance 
of the ends aforesaid. And by virtue hereof do enact, constitute, 
and frame, such just and equal laws, ordinances, acts, constitutions, 
and officers, from time to time, as shall be thought most meet and 
convenient for the general good of the colony ; unto which we 
promise all due submission and obedience." This compact (signed 
by forty-one persons) is, in its very essence, a pure democracy ; and 
in pursuance of it, the colonists proceeded soon afterwards to organ- 
ize the colonial government, under the name of the Colony of New 
Plymouth, to appoint a governor and other officers, and to enact 
laws. The governor was chosen annually by the freemen, and had 
at first one assistant to aid him in the discharge of his trust. Four 
others were soon afterwards added, and finally the number was in- 
creased to seven. The supreme legislative power resided in, and 
was exercised by, the whole body of the male inhabitants — every 



412 COLONIAL CONSTITUTIONS. 

freeman, who was a member of the church, being admitted to vote 
in all public affairs, The number of settlements having increased, 
and being at a considerable distance from each other, a house of 
representatives was established in 1639, the members of which, as 
well as all other officers, were annually chosen. They adopted the 
common law of England as the general basis of their jurisprudence 
— varying it, however, from time to time, by municipal regulations 
better adapted to their situation, or conforming more exactly to 
their stern notions of the absolute authority and universal obliga- 
tion of the Mosaic institutions. 

The Plymouth colonists acted, at first, altogether under the 
voluntary compact and association already mentioned. But they 
daily felt embarrassments from the want of some general authority, 
derived directly or indirectly from the crown, which should recog- 
nize their settlement and confirm their legislation. After several 
ineffectual attempts made for this purpose, they at length succeeded 
in obtaining, in January, 1629, a patent from the council established 
at Plymouth, in England, under the charter of King James, of 
1620. This patent, besides a grant of the territory, upon the terms 
and tenure of the original patent of 1620, included an authority to 
the patentee (William Bradford) and his associates " to incorporate, 
by some usual or fit name and title, him or themselves, or the peo- 
ple there inhabiting under him or them, and their successors ; from 
time to time to make orders, ordinances, and constitutions, as well 
for the better government of their affairs here, and the receiving or 
admitting any into their society, as also for the better government 
of his or their people, or his or their people at sea, in going thither 
or returning from thence ; and the same to put or cause to be put 
in execution, by such officers and ministers as he or they shall au- 
thorize and depute ; provided, that the said laws and orders be not 
repugnant to the laws of England, or the frame of government by 
the said president and council [of Plymouth Company] hereafter 
to be established." 

The charter of 1629 furnished them, however, with the color of 
delegated sovereignty, of which they did not fail to avail themselves. 
They assumed under it the exercise of the most plenary executive, 
legislative, and judicial powers, with but a momentary scruple as to 



COLONIAL CONSTITUTIONS. 413 

their right to inflict capital punishments. They were not disturbed 
in the free exercise of these powers until after the restoration of 
Charles II. Their authority under their charter was then ques- 
tioned ; and several unsuccessful attempts were made to procure a 
confirmation from the crown. They continued to cling to it, until, 
in 1684, their charter was overturned. An arbitrary government 
was then established over them, in common with the other New 
England colonies, and they were finally incorporated into a province, 
with Massachusetts, under the charter granted to the latter by 
William and Mary, in 1691. 

After providing for the manner of choosing their governor and 
legislature, as above stated, their first attention seems to have been 
directed to the establishment of " free liberties of the free-born 
people of England." It was therefore declared, almost in the lan- 
guage of Magna Charta, that justice should be impartially admin- 
istered unto all, not sold or denied ; that no person should suffer 
" in respect to life, limb, liberty, good name, or estate, but by virtue 
or equity of some express law of the General Court, or the good 
and equitable laws of our nation suitable for us, in matters which 
are of a civil nature (as by the court here hath been accustomed), 
wherein we have no particular law of our own ; " and none should 
suffer without being brought to answer by due course and process 
of law ; that, in criminal and civil cases, there should be a trial by 
jury at all events upon a final trial on appeal, with the right to 
challenge for just cause ; and, in capital cases, a peremptory right 
to challenge twenty jurors, as in England ; and that no party should 
be cast or condemned, unless upon the testimony of two sufficient 
witnesses, or other sufficient evidence, or circumstances, unless 
otherwise specially provided by law. All processes were directed 
to be in the king's name. All trials in respect to land were to be in 
the county where it lay ; and all personal actions where one of the 
parties lived ; and lands and goods were liable to attachment to 
answer the judgment rendered in any action. All lands were to 
descend according to the free tenure of lands of East Greenwich, 
in the county of Kent ; and all entailed lands according to the law 
of England. 



414 COLONIAL CONSTITUTIONS. 

Massachusetts. — Application was made for a charter to King 
Charles, who, accordingly, in March, 1628, granted to the grantees 
and their associates the most ample powers of government. The 
charter confirmed to them the territory already granted by the 
council established at Plymouth, to be holden of the crown, as of 
the royal manor of East Greenwich, " in free and common soccage, 
and not in capite, nor by knight's service," yielding to the crown 
one fifth part of all ore of gold and silver, &c. It also created the 
associates a body politic by the name of " The Governor and Com- 
pany of the Massachusetts Bay in New England, " with the usual 
powers of corporations. It provided that the government should 
be administered by a governor, a deputy -governor, and eighteen 
assistants, from time to time elected out of the freemen of the 
company, which officers should have the care of the general business 
and affairs of lands and plantations, and the government of the 
people there ; and it appointed the first governor, deputy-governor, 
and assistants, by name. It further provided that a court or quo- 
rum, for the transaction of business, should consist of the governor 
or the deputy-governor, and seven or more assistants, which should 
assemble as often as once a month for that purpose, and also that 
four great general assemblies of the company should be held in 
every year. In these great and general assemblies (which were 
composed of the governor, deputy, assistants, and freemen present), 
freemen were to be admitted free of the company, officers were to 
be elected, and laws and ordinances for the good and welfare of the 
colony made ; "so as such laws and ordinances be not contrary or 
repugnant to the laws and statutes of this our realm of England." 
At one of those great and general assemblies held in Easter Term, 
the governor, deputy, and assistants, and other officers, were to be 
annually chosen by the company present. The company were fur- 
ther authorized to transport any subjects, or strangers willing to 
become subjects, of the crown, to the colony, and to carry on trade 
to and from it, without custom or subsid} T , for seven years, and were 
to be free of all taxation of imports or exports to and from the 
English dominion for the space of twenty -one years, with the excep- 
tion of a five per cent. duty. The charter further provided that all 
subjects of the crown, who should become inhabitants, and their 



COLONIAL CONSTITUTIONS. 415 

children bom there, or on the seas going or returning, should enjoy 
all liberties and immunities of free and natural subjects, as if they, 
and every of them, were born within the realm of England. Full 
legislative authority was also given, subject to the restriction of 
not being contrary to the laws of England. 

For three or four years after the removal of the charter, the 
governor and assistants were chosen, and all the business of the 
government was transacted, by the freemen assembled at large in a 
General Court. But the members having increased, an alteration 
took place, and in 1634, the towns sent representatives to the 
General Court. They drew up a general declaration, that the 
General Court alone had power to make and establish laws, and to 
elect officers ; to raise moneys and taxes, and to sell lands ; and 
that, therefore, every town might choose persons, as representatives, 
not exceeding two, who should have the full power and voices of all 
the freemen, except in the choice of officers and magistrates, wherein 
every freeman was to give his own vote. The system thus proposed 
was immediately established by common consent, although it is no- 
where provided for in the charter. And thus was formed the 
second house of representatives (the first being in Virginia) in any 
of the colonies. At first, the whole of the magistrates (or assist- 
ants) and the representatives sat together, and as one body, in en- 
acting all laws and orders. But at length, in 1644, they separated 
into two distinct and independent bodies, each of which possessed 
a negative upon the acts of the other. This course of proceeding 
continued until the final dissolution of the charter. 

The General Court, in their address to Parliament in 1646, in 
answer to the remonstrance of certain malcontents, used the follow- 
ing language : " For our government itself, it is framed according to 
our own charter, and the fundamental and common laws of England, 
and carried on according to the same (taking the words of eternal 
truth and righteousness along with them, as that rule by which all 
kingdoms and jurisdictions must render an account of every act 
and administration in the last day), with as bare an allowance for 
the disproportion between such an ancient, populous, wealthy king- 
dom, and so poor an infant, thin colony, as common reason can 
afford." And they then proceeded to show the truth of their state- 



416 COLONIAL CONSTITUTIONS. 

ment by drawing a parallel, setting down in one column the funda- 
mental and common laws and customs of England, beginning with 
Magna Charta, and, in a corresponding column, their own funda- 
mental laws and customs. 

After the fall of the first colonial charter, in 1684, Massachu- 
setts remained for some years in a very disturbed state, under the 
arbitrary power of the crown. At length a new charter was, in 
1691, granted to the colony by William and Mary; and it hence- 
forth became known as a province, and continued to act under this 
last charter until after the Revolution. The charter comprehended 
within its territorial limits all the old colony of the Massachusetts 
Bay, the colony of New Plymouth, the province of Maine, the ter- 
ritory called Acadia or Nova Scotia, and all the lands lying between 
Nova Scotia and Maine ; and incorporated the whole into one prov- 
ince by the name of the Province of the Massachusetts Bay in 
New England, to be holden as of the royal manor of East Green- 
wich, in the county of Kent. It confirmed all prior grants made 
of lands to all persons, corporations, colleges, towns, villages, 
and schools. It reserved to the crown the appointment of the 
governor, and lieutenant-governor, and secretary of the province, 
and all the officers of the Court of Admiralty. It provided for 
the appointment, annually, of twenty -eight counsellors, who were 
to be chosen by the General Court, and nominated the first board. 
The governor and counsellors were to hold a council for the order- 
ing and directing of the affairs of the province. The governor was 
invested with the right of nominating, and, with the advice of the 
council, of appointing all military officers, and all sheriffs, provosts, 
marshals, and justices of the peace, nnd other officers of courts of 
justice. He had also the power of calling the General Court, and 
of adjourning, proroguing, and dissolving it. He had also a nega- 
tive upon all laws passed by the General Court. The General 
Court was to assemble annually on the last Wednesday of May ; 
and was to consist of the governor and council for the time being, 
and of such representatives, being freeholders, as should be annually 
elected by the freeholders of each town who possessed a freehold of 
forty shillings annual value, or other estate to the value of forty 
pounds. Each town was entitled to two representatives ; but the 



COLONIAL CONSTITUTIONS. 417 

General Court was, from time to time, to decide on the number 
which each town should send. The General Court was invested 
with fuil authority to erect courts, to levy taxes, and make all 
wholesome laws and ordinances, " so as the same be not repugnant 
or contrary to the laws of England ; v and to settle annually all civil 
officers whose appointment was not otherwise provided for. All 
laws, however, were to be sent to England for approbation or disal- 
lowance ; and if disallowed, and so signified under the sign manual 
and signet, within three years, the same thenceforth to cease and 
become void ; otherwise to continue in force according to the terms 
of their original enactment. The governor was also made com- 
mander-in-chief of the militia, with the usual martial powers ; but 
was not to exercise martial law without the advice of the council. 
In case of his death, removal, or absence, his authority was to 
devolve on the lieutenant-governor, or, if his office was vacant, then 
on the council. With a view also to advance the growth of the 
province by encouragiDg new settlements, it was expressly provided 
that there should be " a liberty of conscience allowed in the worship 
of God to all Christians, except Papists ; " and that all subjects in- 
habiting in the province, and their children born there, or on the 
seas going or returning, should have all the liberties and immunities 
of free and natural subjects, as if they were born within the realm 
of England. And in all cases an appeal was allowed from the 
judgments of any courts of the province to the king, in the privy 
council, in England, where the matter in difference exceeded three 
hundred pounds sterling. And, finally, there was a reservation of 
the whole admiralty jurisdiction to the crown ; and of a right to 
all subjects to fish on the coasts. 

After the grant of the provincial charter, in 1691, the legislation 
of the colony took a wider scope, and became more liberal, as well 
as more exact. At the very first session an act passed, declaring 
the general rights and liberties of the people, and embracing the 
principal provisions of Magna Charta on this subject. Among 
other things, it was declared that no tax could be levied but by the 
General Court ; that the trial by jury should be secured to all the 
inhabitants; and that all lands shall be free from escheats and for- 
feitures, except in cases of high treason. A habeas corpus act was 
18* 



418 COLONIAL CONSTITUTIONS. 

also passed at the same session, but it seems to have been disallowed 
by the crown ; and Chalmers asserts that there is no circumstance, 
in the history of colonial jurisprudence, better established than the 
fact that the habeas corpus act was not extended to the plantations 
until the reign of Queen Anne. 

New Hampshire. — In November, 1629, Captain John Mason 
obtained a grant, from the council of Plymouth, of a territory 
which was afterwards called New Hampshire. The land granted 
was expressly subjected to the conditions and limitations in the 
original patent. A further grant was made to Mason by the coun- 
cil of Plymouth about the time of the surrender of their charter 
(22d April, 1635), covering much of the land in the prior grant, 
and giving to the whole the name of New Hampshire. 

In the exposition of its own charter, Massachusetts contended 
that its limits included the whole territory of New Hampshire ; 
and, being at that time comparatively strong and active, she suc- 
ceeded in establishing her jurisdiction over it, and maintained it 
with unabated vigilance forty years. The controversy was finally 
brought before the king in council ; and in 1679, it was solemnly 
adjudged against the claim of Massachusetts. And it being ad- 
mitted that Mason, under his grant, had no right to exercise any 
powers of government, a commission was, in the same year, issued 
by the crown for the government of New Hampshire. 

New Hampshire continued down to the period of the Revolution 
to be governed by commission as a royal province, and enjoyed the 
privilege of enacting her own laws through the instrumentality of 
a General Assembly, in the manner provided by the first com- 
mission. 

The laws of New Hampshire, during its provincial state, par- 
took very much the character of those of the neighboring province 
of Massachusetts. 

Maine. — In April, 1639, Sir Ferdinando Gorges obtained from 
the crown a confirmatory grant of all the land from Piscataqua to 
Sagadahock and the Kennebeck river, and from the coast into the 
northern interior one hundred and twenty miles ; and it was styled 



COLONIAL CONSTITUTIONS. 419 

" The Province of Maine." Of this province he was made lord 
palatine, with all the powers, jurisdiction, and royalties belonging 
to the bishop of the county palatine of Durham ; and the lauds 
were to be holden as of the manor of East Greenwich. The char- 
ter coutains a reservation of faith and allegiance to the crown, as 
having the supreme dominion. It also authorizes the palatine, with 
the assent of the greater part of the freeholders of the province, to 
make laws, not repugnant or contrary, but as near as conveniently 
may be, to the laws of England, for the public good of the province ; 
and to erect courts of judicature for the determination of all civil 
and criminal causes, with an appeal to the palatine. But all the 
powers of government so granted were to be subordinate to the 
"power and regiment " of the lords commissioners for foreign plan- 
tations for the time being. 

A controversy between Massachusetts and the palatine, as to 
jurisdiction over the province, was brought before the privy council 
at the same time with that of Mason respecting New Hampshire, 
and the claim of Massachusetts was adjudged void. Before a final 
adjudication was had, Massachusetts had the prudence and sagacity, 
in 1677, to purchase the title of Gorges for a trifling sum; and 
thus, to the great disappointment of the crown (then in treaty for 
the same object), succeeded to it, and held it, and governed it as a 
provincial dependency until the fall of its own charter ; and it 
afterwards, as we have seen, was incorporated with Massachusetts, 
in the provincial charter of 1691. 

Connecticut. — The colony of New Haven was settled by emi- 
grants immediately from England, without any title derived from the 
immediate patentees. They began their settlement in 1(538, pur- 
chasing their lands of the natives ; and entered into a solemn com- 
pact of government. By it no person was admitted to any office, 
or to have any voice at any election, unless he was a member of one 
of the churches allowed in the dominion. There was an annual 
election of the governor, the deputy, magistrates, and other officers, 
by the freemen. The General Court consisted of the governor, 
deputy, magistrates, and two deputies from each plantation. 

Other courts were provided for; and their laws and proceedings 



420 COLONIAL CONSTITUTIONS. 

varied in very few circumstances from Massachusetts, except that 
they had no jury, either in civil or criminal cases. 

Soon after the restoration of Charles II., the colony solicited, 
and in April, 1662, obtained, from that monarch, a charter of gov- 
ernment and territory. The charter included within its limits the 
whole colony of New Haven ; and as this was done without the 
consent of the latter, resistance was made to the incorporation, until 
1665, when both were indissolubly united, and have ever since re- 
mained under one general government. 

In 1685, a quo warranto was issued by King James against the 
colony, for the repeal of the charter. No judgment appears to 
have been rendered upon it ; but the colony offered its submission 
to the will of the crown ; and Sir Edmund Andros, in 1687, went 
to Hartford, and, in the name of the crown, declared the govern- 
ment dissolved. They did not, however, surrender the charter, but 
secreted it in an oak, which is still venerated ; and immediately 
after the revolution of 1688, they resumed the exercise of all its 
powers. The charter continued to be maintained as a funda- 
mental law of the State until the year 1818, when a new constitu- 
tion of government was framed and adopted by the people. The 
laws of Connecticut were, in many respects, similar to those of 
Massachusetts. 

Rhode Island. — Roger Williams succeeded in obtaining, from 
the Earl of Warwick, in 1643, a charter of incorporation of Provi- 
dence Plantations ; and also, in 1644, a charter from the two houses 
of Parliament (Charles I. being then driven from his capital) for 
the incorporation of the towns of Providence, Newport, and Ports- 
mouth, for the absolute government of themselves, but according 
to the laws of England. 

Under this charter an assembly was convened in 1647, consisting 
of the collective freemen of the various plantations. The legisla- 
tive power was vested in a court of commissioners of six persons, 
chosen by each of the four towns then in existence. The whole 
executive power seems to have been vested in a president and four 
assistants, who were ehosen from the freemen, and formed the 
supreme court for the administration of justice. 



COLONIAL CONSTITUTIONS. 421 

They continued to act under this government until the restora- 
tion of Charles II. That event seems to have given great satis- 
faction to these Plantations. They immediately proclaimed the king, 
and sent an agent to England ; and in July, 1663, after some opposi- 
tion, they succeeded in obtaining a charter from the crown. 

That charter incorporated the inhabitants, by the name of " the 
Governor and Company of the English Colony of Rhode Island and 
Providence Plantations, in New England, in America," conferring 
on them the usual powers of corporations. 

Rhode Island enjoys the honor of having been, if not the first, 
at least one of the earliest, of the colonies, and indeed of modern 
states, in which the liberty of conscience and freedom of worship 
were boldly proclaimed among its fundamental laws. 

In December, 1686, Sir Edmund Andros, agreeably to his 
orders, dissolved their government, and assumed the administration 
of the colony. The revolution of 1688 put an end to his power ; 
and the colony immediately afterwards resumed its charter, and, 
though not without some interruptions, continued to maintain and 
exercise its powers down to the period of the American Revolution. 
After the Revolution it continued to act under the same charter as 
a fundamental law, being the only State in the Union which did not 
immediately form a new constitution of government. 

Maryland. — The province of Maryland was included originally 
in the patent of the Southern or Virginia Company ; and, upon the 
dissolution of that company, it reverted to the crown King 
Charles I., on the 20th of June, 1632, granted it by patent to 
Cecilius Calvert, Lord Baltimore. By the charter, the king erected 
it into a province, and gave it the name of Maryland, in honor of 
his queen, Henrietta Maria, the daughter of Henry IV. of France, 
to be held of the crown of England, he, yearly, forever, rendering 
two Indian arrows. The first emigration made under the auspices 
of Lord Baltimore was in 1632, and consisted of about 200 
gentlemen of considerable fortune and rank, and their adherents, 
being chiefly Roman Catholics. " He laid the foundation of this 
province (says Chalmers) upon the broad basis of security to prop- 
erty and of freedom of religion, granting, in absolute fee, fifty 



422 COLONIAL CONSTITUTIONS. 

acres of land to every emigrant ; establishing Christianity agreea- 
bly to the old common law, of which it is a part, without allowing 
preeminence to any particular sect. The wisdom of his choice soon 
converted a dreary wilderness into a piosperous colony." 

The first legislative assembly of Maryland, held by the freemen 
at large, was in 1634-1635 ; but little of their proceedings is 
known. No acts appear to have been adopted until 1638-1639, 
when provision was made for a representative House of Assembly, 
chosen by the freemen ; and the laws passed by the Assembly, and 
approved by the proprietary, or his lieutenant, were to be of full 
force. 

At the same session, an act, which may be considered as in some 
sort a Magna Charta, was passed, declaring, among other things, 
that " Holy Church, within this province, shall have all her rights 
and liberties, and that the inhabitants shall have all their rights 
and liberties according to the great charter of England." Mary- 
land, like the other colonies, was early alive to the importance of 
possessing the sole power of internal taxation ; and accordingly, in 
1650, it was declared that no taxes should be levied without the 
consent of the General Assembly. 

Upon the revolution of 1688, the government of Maryland was 
seized into the hands of the crown, and was not again restored to 
the proprietary until 1716. From that period no interruption oc- 
curred until the American Revolution. 

New York. — Charles II., in March, 1664, granted a patent to 
his brother, the Duke of York and Albany, by which he conveyed 
to him the region extending from the western bank of the Connecti- 
cut to the eastern shore of the Delaware, together with Long Island, 
and conferred on him the powers of government, civil and military. 

A part of this tract was afterwards conveyed by the duke, by 
deed of lease and release, in June of the same year, to Lord Berke- 
ley and Sir G-eorge Carteret. The territory then claimed by the 
Dutch as the New Netherlands was divided into the colonies of 
New York and New Jersey. In September, 1664, the Dutch colony 
was surprised by a British armament, which arrived on the coast, 
and was compelled to surrender to its authority. 



COLONIAL CONSTITUTIONS. 423 

No general assembly was called for several years ; and the peo- 
ple having become clamorous for the privileges enjoyed by other 
colonists, the governor was, in 1G82, authorized to call an assembly, 
which was empowered to make laws for the general regulation of 
the State, which, however, were of no force without the ratification 
of the proprietary. Upon the revolution of 1688, the people of 
New York immediately took side in favor of the Prince of Orange. 
From this era they were deemed entitled to all the privileges of 
British subjects, inhabiting a dependent province of the state. 

As soon as the first royal governor arrived,, in 1691, an assem- 
bly was called, which passed a number of important acts. Among 
others was an act virtually declaring their right of representation, 
and their right to enjoy the liberties and privileges of Englishmen 
by Magna Charta. It enacted that the supreme legislative power 
should forever reside in a governor and council appointed by the 
crown, and the people by their representatives (chosen in the man- 
ner pointed out in the act) convened in General Assembly ; that, 
in all criminal cases, there should be a trial by a jury ; that estates 
of femes covert should be conveyed only by deed upon privy exami- 
nation ; that wills in writing, attested by three or more credible 
witnesses, should be sufficient to pass lands ; that there should be 
no fines upon alienations, or escheats and forfeitures of lands, ex- 
cept in cases of treason ; that no person should hold any office, 
unless upon his appointment he would take the oaths of supremacy, 
and the test prescribed by the act of Parliament ; that no tax or 
talliage should be levied but by the consent of the General As- 
sembly. 

Perhaps New York was more close in the adoption of the policy 
and legislation of the parent country, before the Eevolution, than 
any other colony. 

New Jersey. — New Jersey, as we have already seen, was part 
of the territory granted to the Duke of York, and was by him 
granted, in June, 1664, to Lord Berkeley and Sir George Carteret, 
with all the rights, royalties, and powers of government which he 
himself possessed. The proprietors, for the better settlement of 



424 COLONIAL CONSTITUTIONS. 

the territory, agreed, in February, 1664r-1665, upon a constitution 
or concession of government. 

This constitution continued until the province was divided, in 
1676, between the proprietors. By that division East New Jersey 
was assigned to Carteret ; and West New Jersey to William Penn 
and others, who had purchased of Lord Berkeley. Carteret then 
explained and confirmed the former concessions for the territory 
thus exclusively belonging to himself. The proprietors also of 
West Jersey drew up another set of concessions for the settlers 
within that territory. They contain very ample privileges to the 
people. 

Whether these concessions became the general law of the prov- 
ince seems involved in some obscurity. There were many difficul- 
ties and contests for jurisdiction between the governors of the Duke 
of York and the proprietors of the Jerseys ; and these were not set- 
tled until after the duke, in 1680, finally surrendered all right to 
both by letters patent granted to the respective proprietors. In 
1681, the governor of the proprietors of West Jersey, with the 
consent of the General Assembly, made a frame of government, 
embracing some of the fundamentals in the former concessions. 
There was to be a governor and council, and a General Assembly 
of representatives of the people. The General Assembly had the 
power to make laws, to levy taxes, and to appoint officers. Liberty 
of conscience was allowed, and no persons rendered incapable of 
office in respect of their faith and worship. West Jersey continued 
to be governed in this manner until the surrender of the proprie- 
tary government, in 1702. 

Carteret died an 1679, and, being sole proprietor of East Jer- 
sey, by his will he ordered it to be sold for payment of his debts ; 
and it was accordingly sold to William Penn and eleven others, who 
were called the Twelve Proprietors. They afterwards took twelve 
more into the proprietaryship ; and to the twenty-four thus formed, 
the Duke of York, in March, 1682, made his third and last grant 
of East Jersey. Very serious dissensions soon arose between the 
two provinces themselves, as well as between them and New York, 
which threatened the most serious calamities. A quo tuarranto was 
ordered by the crown, in 1686, to be issued against both provinces. 



COLONIAL CONSTITUTIONS. 425 

East Jersey immediately offered to be annexed to West Jersey, 
and to submit to a governor appointed by the crown. Soon after- 
wards the crown ordered the Jerseys to be annexed to New England, 
and the proprietors of East Jersey made a formal surrender of its 
patent, praying only for a new grant, securing their right of soil. 
Before this request could be granted, the revolution of 1688 took 
place, and they passed under the allegiance of a new sovereign. 

From this period, both of these provinces were in a state of 
great confusion and distraction ; and remained so until the propri- 
etors of both made a formal surrender of all their powers of gov- 
ernment, but not of their lands, to Queen Anne, in April, 1702. 
The queen immediately reunited both provinces into one province, 
and by commission appointed a governor over them. 

Pennsylvania. — Pennsylvania was originally settled by detach- 
ments of planters under various authorities, Dutch, Swedes, and 
others, which at different times occupied portions of land on South 
or Delaware river. The ascendency was finally obtained over these 
settlements by the governors of New York, acting under the char- 
ter of 1664, to the Duke of York. 

It continued in a feeble state until William Penn, in 1681, ob- 
tained a patent from Charles II., by which he became the proprie- 
tary of an ample territory called Pennsylvania, of which the charter 
constituted Penn the true and absolute proprietary. It authorized 
him, and his heirs and successors, to make all laws for raising 
money and other purposes, with the assent of the freemen of the 
country, or their deputies assembled for the purpose. But 
" the same laws were to be consonant to reason, and not repug- 
nant or contrary, but, as near as conveniently may be, agreeable 
to law, and statutes and rights, of this our kingdom of England." 
The laws for the descent and enjoyment of lands, and succession to 
goods, and of felonies, were to be according to the course in Eng- 
land, until altered by the Assembly. All laws were to be sent to 
England within five years after the making of them, and, if disap- 
proved of by the crown within six months, to become null and void. 
It also authorized the proprietary to appoint judges and other offi- 
cers ; to pardon and reprieve criminals ; to establish courts of jus- 



426 COLONIAL CONSTITUTIONS. 

tice, with a right to appeal to the crown from all judgments ; to 
create cities and other corporations ; to erect ports, and manors, 
and courts baron in such manors. Liberty was allowed to subjects 
to transport themselves and their goods to the province ; and to 
import the products of the province into England ; and to export 
them from thence within one year, the inhabitants observing the 
acts of navigation, and all other laws in this behalf made. It was 
further stipulated that the crown should levy no tax, custom, or 
imposition, upon the inhabitants, of their goods, unless by the con- 
sent of the proprietary or Assembly, " or by act of Parliament in 
England. " 

A new frame of government was, with the consent of the Gen- 
eral Assembly, established in 1683. In 1692, Penn was deprived 
of the government of Pennsylvania by William and Mary ; but it 
was again restored to him in the succeeding year. A third frame 
of government was established in 1696. This again was surren- 
dered, and a new, final charter of government was, in October, 1701, 
with the consent of the General Assembly, established, under which 
the province continued to be governed down to the period of the 
American Revolution. 

Delaware. — After Penn had become proprietary of Pennsyl- 
vania, he purchased of the Duke of York, in 1682, all his right 
and interest in the territory afterwards called the Three Lower 
Counties of Delaware, and the three counties took the names of 
New Castle, Kent, and Sussex. At this time they were inhabited 
principally by Dutch and Swedes, and seem to have constituted an 
appendage to the government of New York. 

In the same year, with the consent of the people, an act of 
union with the province of Pennsylvania was passed, and an act of 
settlement of the frame of government in a General Assembly, 
composed of deputies from the counties of Delaware and Pennsyl- 
vania. By this act the three counties were, under the name of the 
Territories, annexed to the province, and were to be represented in 
the General Assembly, governed by the same laws, and to enjoy 
the same privileges, as the inhabitants of Pennsylvania. Difficulties 
soon afterwards arose between the deputies of the province and those 



COLONIAL CONSTITUTIONS. 427 

of the Territories ; and, after various subordinate arrangements, a 
final separation took place between them, with the consent of the 
proprietary, in 1703. From that period down to the American 
Revolution, the Territories were governed by a separate legislature 
of their own, pursuant to the liberty reserved to them by a clause 
in the original charter or frame of government. 

North and South Carolina. — In March, 1662 (April, 1663), 
Charles II. made a grant, to Lord Clarendon and others, of terri- 
tory lying on the Atlantic Ocean, and erected it into a province, 
by the name of Carolina, to be holden as the manor of East Green- 
wich, in Kent, in free and common soccage, and not in capite, or by 
knight service, subject immediately to the crown, as a dependency, 
forever. 

The grantees were created absolute lords proprietaries, saving 
the faith, allegiance, and supreme dominion of the crown, and in- 
vested with as ample rights and jurisdictions as the Bishop of Dur- 
ham possessed in his palatine diocese. The charter seems to have 
been copied from that of Maryland, and resembles it in many of 
its provisions. 

It further required that all laws should " be consonant to reason, 
and, as near as may be conveniently, agreeable to the laws and cus- 
toms of this our kingdom of England." And it declared that the 
inhabitants and their children, born in the province, should be 
denizens of England, and entitled to all the privileges and immu- 
nities of British-born subjects. 

In 1665, the proprietaries obtained from Charles II. a second 
charter, with an enlargement of boundaries. 

Several detached settlements were made in Carolina, which were 
at first placed under distinct temporary governments ; one was in 
Albemarle, another to the south of Cape Fear. Thus various inde- 
pendent and separate colonies were established, each of which had 
its own Assembly, its own customs, and its own laws — a policy 
which the proprietaries had afterwards occasion to regret, from its 
tendency to enfeeble and distract the province. 

In the year 1669, the proprietaries, dissatisfied with the systems 
already established within the province, signed a fundamental con- 



428 COLONIAL CONSTITUTIONS. 

stitution for the government thereof, the object of which is declared 
to be, " that we may establish a government agreeable to the mon- 
archy, of which Carolina is a part, that we may avoid making too 
numerous a democracy." This constitution was drawn up by the 
celebrated John Locke. 

It provided that the oldest proprietary should be the palatine, 
and the next oldest should succeed him. Each of the proprietaries 
was to hold a high office. The rules of precedency were most ex- 
actly established. Two orders of hereditary nobility were institu- 
ted, with suitable estates, which were to descend with the dignity. 
The provincial legislature, dignified with the name of parliament, 
was to be biennial, and to consist of the proprietaries or their 
deputies, of the nobility, and of representatives of the free- 
holders chosen in districts. They were all to meet in one apartment 
(like the ancient Scottish Parliament), and enjoy an equal vote. 
No business, however, was to be proposed until it had been debated 
in the grand council (which was to consist of the proprietaries and 
forty-two counsellors), whose duty it was to prepare bills. No act 
was of force longer than until the next biennial meeting of the 
Parliament, unless ratified by the palatine and a quorum of the 
proprietaries. All the laws were to become void at the end of a 
century, without any formal repeal. The Church of England 
(which was declared to be the only true and orthodox religion) was 
alone to be allowed a public maintenance by Parliament ; but every 
congregation might tax its own members for the support of its own 
minister. Every man of seventeen years of age was to declare 
himself of some church or religious profession, and to be recorded 
as such ; otherwise he was not to have any benefit of the laws. 
And no man was to be permitted to be a freeman of Carolina, or have 
any estate or habitation, who did not acknowledge a God, and that 
God is to be publicly worshipped. In other respects there was a 
guaranty of religious freedom. There was to be a public registry 
of all deeds and conveyances of lands, and of marriages and births. 
Every freeman was to have " absolute power and authority over his 
negro slaves, of what opinion or religion soever." No civil or 
criminal cause was to be tried but by a jury of the peers of the 
party ; but the verdict of a majority was binding. With a view 



COLONIAL CONSTITUTIONS. 429 

to prevent unnecessary litigation, it was provided that " it shall be 
a base and vile thing to plead for money or reward ;" and that, 
11 since multiplicity of comments, as well as of laws, have great in- 
conveniences, and serve only to obscure and perplex, all manner of 
comments and expositions on any part of those fundamental con- 
stitutions, or on any part of the common or statute law of Carolina, 
are absolutely prohibited." 

After a few years' experience of its ill arrangements, and its 
mischievous tendency, the proprietaries, upon the application of the 
people (in 1693), abrogated the constitution, and restored the 
ancient form of government. Thus perished the labors of Mr. 
Locke; and thus perished a system, under the administration of 
which, it has been remarked, the Carolinas had not known one day 
of real enjoyment, and that introduced evils and disorders which 
ended only with the dissolution of the proprietary government ! 

There was, at this period, a space of three hundred miles be- 
tween the southern and northern settlements of Carolina; and, 
though the whole province was owned by the same proprietaries, 
the legislation of the two great settlements had been hitherto con- 
ducted by separate and distinct assemblies — sometimes under the 
same governor, and sometimes under different governors. The 
legislatures continued to remain distinct down to the period when a 
final surrender of the proprietary charter was made to the crown, 
in 1729. The respective territories were designated by the name 
of North Carolina and South Carolina, and the laws of each ob- 
tained a like appellation. Cape Fear seems to have been commonly 
deemed, in the commissions of the governor, the boundary between 
the two colonies. 

At a little later period (1732), the province was divided; and 
the divisions were distinguished by the names of North Carolina 
and South Carolina. 

The government conferred on Carolina, when it became a royal 
province, consisted of a governor and council appointed by the crown, 
and an Assembly chosen by the people ; and these three branches 
constituted the legislature. The governor convened, prorogued, 
and dissolved the legislature, and had a negative upon the laws, 
and exercised the executive authority. He possessed also the pow- 



430 COLONIAL CONSTITUTIONS. 

ers of the court of chancery, of the admiralty, of supreme ordinary, 
and of appointing magistrates and militia officers. All laws were 
subject to the royal approbation or dissent, but were in the mean 
time in full force. 

On examining the statutes of South Carolina, a close adherence 
to the general policy of the English laws is apparent. As early as 
the year 1712, a large body of the English statutes were, by ex- 
press legislation, adopted as part of its own code ; and all English 
statutes respecting allegiance, all the test and supremacy acts, and 
all acts declaring the rights and liberties of the subjects, or secur- 
ing the same, were also declared to be in force in the province. All 
and every part of the common law, not altered by these acts, or in- 
consistent with the constitutions, customs, and laws of the province, 
was also adopted as part of its jurisprudence. 

In respect to North Carolina, there was an early declaration of 
the legislature (1715), conformably to the charter, that the common 
law was, and should be, in force in the colony. All statute laws 
for maintaining the royal prerogative and succession to the crown ; 
and all such laws made for the establishment of the church, and 
laws made for the indulgence to Protestant dissenters ; and all laws 
providing for the privileges of the people, and security of trade ; 
and all laws for the limitation of actions, and for preventing vexa- 
tious suits, and for preventing immorality and fraud, and confirming 
inheritances and titles of land, were declared to be in force in the 
province. The policy thus avowed was not departed from down to 
the period of the American Revolution. 

Georgia. — In the same year in which Carolina was divided 
(1732), a project was formed for the settlement of a colony upon 
the unoccupied territory between the rivers Savannah and Alata- 
maha. The object of the projectors was to strengthen the province 
of Carolina, to provide a maintenance for the suffering poor of the 
mother country, and to open an asylum for the persecuted Protest- 
ants in Europe ; and, in common with all the other colonies, to 
attempt the conversion and civilization of the natives. Upon appli- 
cation, George II. granted a charter to the company (consisting of 
Lord Percival and twenty others, among whom was the celebrated 



COLONIAL CONSTITUTIONS. 431 

Oglethorpe), and incorporated them by the name of the " Trustees 
for establishing the Colony of Georgia, in America." The charter 
conferred the usual powers of corporations in England, and author- 
ized the trustees to hold any territories, &c, in America, for the 
better settling of a colony. 

The charter further granted to the corporation seven undivided 
parts of all the territories lying in that part of South Carolina 
which lies from the northern stream of a river, there called the 
Savannah, all along the seacoast, to the southward, unto the south- 
ernmost stream of a certain other great river, called the Ala- 
tamaha, and westward from the heads of the said rivers respectively 
in direct lines to the South Seas, to be held as of the manor of 
Hampton Court, in Middlesex, in free and common soccage, and 
not in capite. It then erected all the territory into an independent 
province, by the name of Georgia. It authorized the trustees, for 
the term of twenty-one years, to make laws for the province, " not 
repugnant to the laws and statutes of England," subject to the 
approbation or disallowance of the crown, and after such approba- 
tion to be valid. The affairs of the corporation were ordinarily to 
be managed by the common council. It was further declared that 
all persons born in the province should enjoy all the privileges and 
immunities of natural-born subjects in Great Britain. Liberty of 
conscience was allowed to all inhabitants in the worship of God, 
and a free exercise of religion to all persons except Papists. The 
corporation were also authorized, for the term of twenty-one years, 
to erect courts of judicature for all civil and criminal causes, and 
to appoint a governor, judges, and other magistrates. The registra- 
tion of all conveyances of the corporation was also provided for. 
The governor was to take an oath to observe all the acts of Parlia- 
ment relating to trade and navigation, and to obey all royal instruc- 
tions pursuant thereto. The governor of South Carolina was to 
have the chief command of the militia of the province ; and 
goods were to be imported and exported without touching at any 
port in South Carolina. At the end of the twenty-one years, the 
crown was to establish such form of government in the province, 
and such method of making laws therefor, as in its pleasure should 



432 COLONIAL CONSTITUTIONS. 

be deemed meet ; and all officers should be then appointed by the 
crown. 

It continued to languish, until at length the trustees, wearied 
with their own labors, and the complaints of the people, in June, 
1751, surrendered the charter to the crown. Henceforward it was 
governed as a royal province, enjoying the same liberties and immu- 
nities as other royal provinces ; and in process of time it began to 
flourish, and at the period of the American Eevolution it had 
attained considerable importance among the colonies. 

In respect to its ante-revolutionary jurisprudence, the same 
system prevailed as in the Carolinas, from which it sprang. In- 
testate estates descended according to the course of the English 
law, 



CHAPTER XIY. 

THE ANGLO-SAXON SYSTEM IN NORTH AMERICA— DISPUTE WITH 
ENGLAND— RIGHT OF REVOLUTION. 

COMPARISON OF THE COLONIAL WITH THE ANGLO-SAXON SETTLEMENTS — DISTINCT 

NESS OF THE COLONIES AND ITS CAUSES — DIFFERENT TIMES OF SETTLEMENT 

DISTANCE — NAVIGATION LAWS — RELIGIOUS ANIMOSITIES— POLITICAL ANTIPA- 
THIES — NECESSITY OF THE REVOLUTIONARY WAR THE NEW ENGLAND CON- 
FEDERACY — NATURE OF THE CONTROVERSY OF THE COLONIES WITH ENGLAND 

CLAIMS OF THE ENGLISH PARLIAMENT OPPOSITE VIEW OF THE COLONIES 

HOW VINDICATED BY THE PRESENT COLONIAL SYSTEM OF ENGLAND OBSERVA- 
TIONS — FORCE OF CIRCUMSTANCES IN COMPELLING THE ADOPTION OF THE 

ANGLO-SAXON SYSTEM IN AMERICA THE RIGHT OF REVOLUTION — FOUNDED IN 

NATURE — OBJECT OF GOVERNMENTS THE DOCTRINE OF CONSENT — REVOLUTION 

ONLY JUSTIFIABLE IN CASE OF TYRANNY OR USURPATION — OBJECTION TO THE 
RIGHT OF REVOLUTION ON SCRIPTURAL GROUNDS — HOW ANSWERED — CASE OF 

HEZEKIAH — REVOLUTION IS JUSTIFIABLE POLITICALLY ONLY BY SUCCESS 

PRUDENTIALLY BY AN IMPROVED GOVERNMENT — THE AMERICAN REVOLUTION 
JUSTIFIED RELIGIOUSLY, POLITICALLY, PRUDENTIALLY A QUESTION. 

To the planting of the English colonies in North America we 
might with all propriety apply even stronger language than was 
used in our first chapter to describe the Anglo-Saxon settlements 
in England. Like these the colonies were from the first entirely 
independent of each other. They were planted at times widely 
different, at distant places, under different auspices and different lead- 
ers, with antagonistic principles of faith and government. Estab- 
lished separately, they remained in all respects distinct and almost 
without intercourse until the period of the Revolution. Thus, 
though, like the Saxon tribes, they were of one race and of one 
speech, yet they were in no sense one people. They were even 
more distinct than the kingdoms of the Saxon Octarchy. No simi- 
larity of natural circumstances availed to unite them. Only com- 
19 



434 ANGLO-SAXON SYSTEM IN NORTH AMERICA. 

mon dangers and the sufferance of common wrongs forced them 
at length to enter into a confederate alliance to maintain their 
common rights. 

Not to reckon the early settlements which failed of success, the 
first permanent settlement was made in Virginia in 1606. Georgia 
was not colonized till after 1732. Thus the period of settlements 
extends over a hundred and twenty-six years at least, and by a 
different and still fair computation it might be made much more. 
But at least more than four generations of Virginian colonists had 
lived, and the fifth generation was already well advanced before the 
first field had been cultivated or the first house built in the colony 
of Georgia. 

At the present day, with our immense facilities of locomotion, 
we have but a faint idea of the obstacle to intercourse imposed upon 
the colonists by distance. From Boston to Savannah was a sea voyage 
of weeks, along a coast of which there were no charts, and must be 
made in some small craft but little suited to endure the storms of 
the Atlantic. Colonists much nearer to each other than the colo- 
nists of Georgia and Massachusetts looked upon the distance as 
immense; and if we observe the difficulties to be overcome in 
travelling, they were in fact more remote from each other than Eu- 
rope and America at the present day. Moreover, the Government 
of England did not favor intercourse between them ; and the naviga- 
tion laws, prohibiting direct trade from the colonies to foreign na- 
tions, hindered the development of their marine to an extent which 
operated almost as a prohibition of trade between themselves. 

And apart from interest there was little to create a very strong 
desire for intercourse. Between the Quaker-burning Puritan of 
Massachusetts and the Quaker colonist of Pennsylvania, the 
Roman Catholic of Maryland and the Episcopalian of Virginia or 
the Carolinas, there were strong religious animosities ; and none of 
them were altogether free from the intolerance of religious rancor. 
In New England, women who dissented from dissent were whipped 
naked from Boston to Dedham, and Baptists were drowned to death — 
a rather grim jest on the doctrine of immersion. In Virginia, non- 
conformists to the Church of England were expelled the colony. 
And even in Maryland an act was passed in 1649, though it does 



DISPUTE WITH ENGLAND. EIGHT OF EEVOLTJTION. 435 

Dot appear to have been put in force, which punished Unitarianism 
"with death and confiscation. Religious prejudices so strong and so 
radically opposite were alone sufficient to prevent friendly commu- 
nications ; and in fact most of the colonies were in this respect as 
widely separated from each other as Jerusalem and Samaria of old ; 
they had " no dealings" with each other. 

Nor were their political antipathies much less decided. The 
Cavalier of the South and the Roundhead regicide of the New Eng- 
land settlements had no point of agreement, and their mutual 
bitterness was as intense as that of their respective parties in the 
mother country. Aside from these direct antagonistic influences, 
their different colonial constitutions had a tendency to keep them 
separate. The Plymouth colonies were in the strictest sense 
democracies. In fact, they were the only radical democracies then 
in the world. The Carolinas, on the contrary, were, by the consti- 
tution framed for them by Locke, established on a basis of aristo- 
cratic precedence and power; although the popular principle was 
made coordinate with the aristocratic. Other colonies, and at a 
later date the Carolinas also, were brought into near relations to the 
Government at home by the appointment of their governors and 
councils by the crown ; which, notwithstanding that the assemblies 
were elected by the people, kept alive a cordial feeling of attach- 
ment to the sovereign. In the proprietary governments, particularly 
that of Maryland, where " Cecilius, Lord Baltimore, sovereign lord 
and proprietary of the province," exercised in all but name the 
functions of a constitutional monarch, thus uniting in his single 
person the office of a king, the status of an English peer, and the 
enlightenment of a popular leader, a peculiarity of public feeling 
was produced perhaps more favorable to real progress than any of 
the others. It was preeminently a government of law. The 
" sovereign lord " and the free colonist were equally its subjects. 
Yet the constitution was as far removed from premature democracy 
as from an effete absolutism. Perhaps of all forms of colonial exist- 
ence, this, wisely administered, was least objectionable. Conserva- 
tive and yet progressive, it neither trampled rudely on the institu- 
tions of the past, nor rushed with indiscreet haste into the uncer- 
tainties of an unripe future. But whichever of these forms of local 






436 ANGLO-SAXON SYSTEM IN NORTH AMERICA. 

government may have been best, each was supreme within the colo- 
ny where it prevailed ; each was alike esteemed by those among 
whom it had been instituted ; and where each existed all the others 
were alike despised. 

It was a happy circumstance that there was little intercourse 
among the colonies in the colonial period, for their intercourse 
could hardly have been friendly. It was fortunate, also, that this 
absolute independence of each other as to government was sanctioned 
by prescription, not less than by law and fact, before their union had 
been dreamed of; for an unwise union of antagonistic elements could 
only have produced a strife of factions, civil war, and military 
despotism, or permanent disruption ; and a union of the colonies 
before the acknowledgment of their entire separate sovereignty 
would have been an unwise union, offering continual pretexts for 
sectional aggressions upon local institutions, and compelling sec- 
tional resistance to the usurpation of majorities. On the other 
hand, it was a wise and gracious providence which laid upon the 
colonies a war of years, to be endured, not in formal union with each 
other, but as a confederation of independent States ; till they should 
have forgotten ancient discords in the recollection of their common 
wrongs, their common glory, and their common interests ; that is, 
till they should have been prepared for union under one political 
organization, which, without destroying or impairing their distinct 
supremacy as sovereign States, should yet unite them by a common 
bond in all things in regard to which their interests were identical 
— a bond which, under God, gave them seventy years of domestic 
peace, which nothing but judicial blindness could have led the peo- 
ple to assail, and which God's judgment on a thankless people could 
alone have suffered to be broken. 

There was, however, one notable instance of colonial combina- 
tion and confederation in' New England. It was proposed as early 
as 1637, but difficulties having occurred, the articles of confedera- 
tion were not adopted till 1643, when " a perpetual league of friend- 
ship and amity," styled the United Colonies of New England, was 
formally entered into, " for purposes of offence and defence, and 
mutual advice and succor," by the colonies of Massachusetts, Con- 
necticut, New Haven, and Plymouth. Rhode Island asked to be 



DISPUTE WITH ENGLAND. EIGHT OF KEVOLUTION. 437 

admitted to the league, but was rejected. By the conditions of this 
union the charges of all wars, offensive and defensive, were to be 
borne in common, according to an apportionment previously agreed 
upon. In case of the invasion of any colony, the others were to fur- 
nish a certain contingent of armed men for its defence. Commis- 
sioners appointed by each colony were to meet and determine all 
points of war, peace, leagues, aids, charges, &c, and to frame and 
establish agreements and orders for other general interests. No 
general government over the confederated colonies was contempla- 
ted. Each was still in all respects to govern its own people accord- 
ing to the tenor of its charter. This union, so important during the 
troubles which then agitated the mother country, was not annulled 
by Charles II. on his restoration ; but though it was styled perpetu- 
al, it lasted only forty-three years, when it ceased upon the abroga- 
tion of colonial charters by King James. It was never afterwards 
renewed. 

In the beginning of the previous chapter, we have shown the con- 
stitutional status of the individual colonist. The mutual independence 
of the colonies has just been illustrated. It remains that we should 
indicate the status of the colonies in respect of England, which will 
perhaps be best done if we state at once the opposite constitutional 
positions assumed by England and the colonies respectively in the 
controversy which resulted in the Revolution. This was a new ques- 
tion in England, in regard to which there was much confusion of 
ideas. The general scope, however, of the several arguments was 
this : On the part of England it was claimed that her American 
possessions were acquired in part by conquest and in part by cession 
from the natives ; that these possessions were therefore held by 
right of conquest ; that colonists and settlers in a conquered 
country are, in common with the natives of the country, to be gov- 
erned by such laws as it may please the conqueror to impose, and 
to enjoy only such rights as he may please to recognize; that the 
colonies were in no sense parts of England, but separate and subor- 
dinate dominions ; that they were mere dependencies, not on the 
crown, but on the realm of England ; and hence that the realm, as 
represented by the Parliament of England, including king, lords, 
and commons, was entitled by the right of conquest to impose such 
laws and taxes on them as its sole will should direct. 



438 ANGLO-SAXON SYSTEM IN NORTH AMERICA. 

In answer to this reasoning the colonies maintained that they 
themselves, whether by conquest or by cession, were the true ac- 
quirers of their several territories, which, till settled by them, had 
belonged to England only by the vague right of discovery ; that it 
was only through them that England had actually become pos- 
sessed of these dominions ; and that it was absurd that they should 
be subjected to a right of conquest they had themselves acquired. 
Reverting to the circumstances under which the colonies were 
planted, they observed that the original colonists were free-born 
Englishmen; that they had settled in a country which had as 
yet been neither conquered nor acquired by cession, and in 
which no laws nor government existed ; that therefore by 
the law of nations they were, from the moment of their land- 
ing, governed by the laws of England, as those laws existed 
at that time and so far as they were applicable to the con- 
dition of a colony ; and hence that they were from the first fully 
invested with the rights, as well as obligated by the duties, of natural- 
born English subjects. They conceded that the colonies were not 
parts of the realm of England, but separate and distinct dominions, 
nor did they deny that to a limited extent they were dependent on 
England. Some of them admitted further that they were depend- 
ent, not upon the crown, but on the realm of England. But they 
declared that this dependence must be so interpreted as not to over- 
ride the constitutional rights of the colonists as English subjects 
under the laws of England, as they stood at the time of the planta- 
tion of their several colonies. Referring to the Great Charter of 
King John, the most important of those laws, and the scarcely less 
important statute Be tallagio non concedendo of Edward I., they showed 
that the consent of the subject given through his representatives in 
Parliament was necessary to the legal levying of taxes. Hence 
they argued that, according to the letter not less than the spirit of 
the English Constitution, taxes on the colonists could only be 
assessed by their consent so given ; and since the colonies, being 
separate dominions from the realm of England, were incapable of 
being represented in the Parliament of England, the conclusion 
was inevitable that their own colonial legislatures, in which only 
they were represented, could alone give constitutional sanction to 



DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION. 439 

the imposition of taxes in the colonies. Concerning the claim of 
Parliament to exercise the rights of paramount sovereignty, they 
said that the dependence of the colonists, not being such as to 
vitiate the rights or liberties of their inhabitants, the sovereignty of 
Parliament, could in reason be no greater in the colonies than the 
king's sovereignty in England, and hence that, as the sovereign in 
England could make no laws and impose no taxes but through Par- 
liament, so in the colonies the Parliament of England could have no 
sovereign right of legislation or taxation, but through the colonial 
legislatures. Every position thus assumed by the Americans in their 
controversy with Great Britain, has since that time been completely 
vindicated by the verdict of the English Parliament itself. The 
whole colonial system has been constituted on the principles enun- 
ciated in America a century ago ; and the concessions which would 
have kept the colonies of North America devoted subjects of the 
British crown, are now the common axioms of its colonial juris- 
prudence. A more complete justification there could hardly be of 
the position of colonial America ; but we may well wonder that a 
legislative body like the Parliament of England, which had battled so 
determinedly against the usurpations of a monarchy, and by the Bill 
of Rights and Act of Settlement had so completely limited the 
crown as to insure the freedom of the subject, should itself have 
seized so empty a pretext to set up a despotic parliamentary 
authority over its dependencies. And when we find that one 
whose mind was so clear, large, and liberal as Blackstone's, could 
(surely through oversight) accept the empty and self-contradic- 
tory reasoning which aimed to prove that the colonial dependencies 
were to be governed by the right of conquest as subjugated provin- 
ces, it would be difficult to give a better exposition of the strange 
anomaly than is enunciated in the aphorism, that despotism, when 
possible, is always certain. The saying is as true of parliaments as 
of princes, and as true of majorities as of parliaments. Wherever 
power is lodged, there is a certainty that, if not checked by a re- 
straining influence, it will be used to its full limit, if indeed all 
limitations be not broken down. The cases of King John, the Puri- 
tan majority of eleven in the Long Parliament, and the present 
instance of parliamentary usurpation in the matter of the colonies, 



440 AtfGLOSAXON SYSTEM Ttf NOETH AMEEICA. 

will illustrate our meaning. Cases nearer home, however obvious, 
we cannot here discuss. 1 

We now approach the grand event of the last century, the rees- 
tablishment on a new continent, with all the aids of a mature and 
still advancing civilization, of the ancient principle which lay at the 
foundation of the Anglo-Saxon polity. Already we have seen the 
colonies, established like the Saxon tribes, in perfect independence 
of each other, growing up in the enjoyment of the rights and liber- 
ties, which centuries of bloodshed had at lenght wrung from the 
Norman monarchs and their various successors. We have seen 
them educated, by the exercise of local sovereignty as dependen- 
cies of a great kingdom, for still more complete self-government. 
The arrogant assumption of the English Government of a right 
to govern them as denizens of conquered countries by the arbitrary 
laws of conquest, left them no choice but to become the slaves of 
arbitrary power or to exercise the great right of rebellion against 
tyranny which is so emphatically recognized in Magna Charta. 
Individually they were too weak to rebel successfully, and hence a 
confederation became necessary to insure success. Their first con- 
federation showed them the advantages of union, and revealed defects 
in its extemporary articles ; and thus through error and defect they 
were led to the incomparable form of government provided by the 
present Constitution, which is a complete revival of the Anglo-Saxon 
polity. Securing and maintaining the complete right of self-govern- 
ment to every sovereign State, and legislating for them only in matters 
as to which their interests are identical, the Union, brought into 
existence by the States under the Constitution, is a full revival of 
the system of the Anglo-Saxon Empire, differing from it only by 
the various improvements which the progress of civilization have 
suggested. 

The story of the Revolutionary War lies beyond our province, 
but before we enter on the constitutional detail reserved to us, we 
venture to premise a few words on the right of revolution. 

The right of revolution is simply a particular application of the 
general right of self-defence. In the state of nature every individ- 
ual person has the right to defend by violence his life, liberty, and 
property, against assaults by whomsoever made. The purpose of 



DISPUTE WITH ENGLAND. EIGHT OF REVOLUTION. 441 

political organizations is to substitute the whole power of a commu- 
nity for that of individuals in the protecting of their persons and 
their properties, by means of laws for the restraint and punishment 
of wrong-doers within, and military combinations to resist foreign 
aggressions from without. It is on this ground that the doctrine of 
consent rests. For in any government it is necessary that a portion 
of the freedom of the individual should be surrendered that the rest 
may be preserved. He resigns his right of individual self-defence 
and submits to the restraints of law in order that he may enjoy more 
perfect security. But if a government be set over- him without his 
consent, this is itself an invasion of his liberty which the law of 
nature authorizes him to resist. Hence arbitrary governments, 
whose subjects have neither expressly nor tacitly consented to their 
institution, and governments whose title to exist is founded on the 
so-called right of conquest, are in a perpetual state of war with 
nature, and their subjects have a perpetual and indefeasible right 
of rebellion against them. No prescription holds against the laws 
of nature ; and such governments, being governments of force and 
contrary to nature, hold their power subject to the people's right 
to reassert the law of nature by resisting, and, if possible, destroying 
their usurped power. 

There are, however, few civilized governments to which the sub- 
jects have not yielded an express or tacit consent ; and lawful govern- 
ments can only be lawfully resisted when they are perverted from 
their lawful purposes. Man is a social being, naturally living in 
societies ; to the existence of society, government is necessary ; hence 
anarchy is repugnant to nature ; and therefore the wanton subver- 
sion of governments, lawfully instituted by consent of their subjects, 
being an act which tends to anarchy, is a crime against the law of 
nature. But when lawful governments, instead of protecting life, 
liberty, and property, become or threaten to become destructive of 
these or prejudicial to them, they proclaim war against the law of 
nature, and their subjects have the right to overthrow them. In 
this case it is the government that is truly rebellious, and the people 
who are truly obedient to the law of nature. 

To this view there are some who object on Scriptural grounds. 
u All power is of God ; " " the powers that be are ordained of God ; " 
19* 



442 ANGLO-SAXON" SYSTEM IN NORTH AMERICA. 

the magistrate is u the minister of God ;" " let every soul be subject 
to the higher powers." These are the sayings of St. Paul. "We have 
only, however, to carry his injunctions far enough in order to show 
that they must be received with considerable limitations. If the magis- 
trate is the minister of God who acquires his authority over a king- 
dom through an armed force of one hundred thousand men, it is difficult 
to say why a marauding chief who occupies a district at the head of a 
band of brigands is not equally the minister of God. And if every soul 
is to be subject to the edicts of the one, it would be hard to find a 
reason why the same rule should not hold good of the demands of his 
less mighty but not less righteous imitator. Scripture itself gives 
warrant for rebellion against arbitrary and unjust power. The 
exodus of Israel from Egypt was rebellion against a government to 
which they had consented by their voluntary settlement under it, but 
from which they were released because it had become oppressive. 
And in the instance of Hezekiah, so aptly quoted by Locke, we have 
a case in which the indefeasible right of rebellion against a subju- 
gating power, even after submission and enforced consent, is perfectly 
sustained. Hezekiah and his country had been conquered by Assyria, 
to the king of which he had submitted. On condition of consenting 
to the supremacy of Assyria, he had been suffered to retain his throne. 
But " the Lord was with Hezekiah and he prospered ; wherefore he 
went forth, and he rebelled against the king of Assyria and served 
him not." (2 Kings xviii. 7.) This is spoken of " the good king 
Hezekiah," and spoken certainly not in reprehension. The sacred 
penman represents this godly king's rebellion as the consequence of 
the divine presence and blessing. Unquestionably lawful magis- 
trates are ministers of God for good to men, but when their lawful 
powers are prostituted to subserve the devil's purposes, whose min- 
isters do they become ? The devil himself is styled in Holy Writ the 
i{ prince of this world," and, to judge from what we see around us in 
this nineteenth century, he is one of the mightiest of the " powers 
that be ; " but here at least resistance to the tyrant is obedience to 
God. The truth is, the religion of the Holy Scriptures is a religion 
of common sense, and a religion of righteousness. It does not 
declare a wrong to be right because it is sustained by force, or 
because it has the trappings of legitimate authority to cover an 



DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION. 443 

unlawful usurpation. Lawful magistrates aud lawful governmeuts 
it is the Christian's duty to obey as ministers of God. Resistance 
to usurped power — that is, to a robbery of man's most precious herit- 
age — is not contrary either to the letter or the spirit of the 
Scriptures. 

A Christian, then, may lawfully rebel against the government 
of which he is a subject ; but only when it is a lawless government ; 
that is, when its authority is based, not on the law of nature, but of 
force, or when its power, though lawfully acquired, is not so exer- 
cised as to protect the subject in his rights of property and person, 
which is the object of all government. Against such a government 
or one which threatens to become such, but against such only, may 
a Christian lawfully rebel or aid a revolution. 

Politically, however, revolution must be justified by quite a 
different argument — success. International law takes little cogni- 
zance of the original right by which power is acquired. The fact 
of its existence is the only reason for its recognition. Till the 
revolution is successful by the overthrow of the government whose 
destruction is attempted, it is in the eye of international law rebel- 
lion. Once successful, the authority it sets up becomes legitimate. 
Politically speaking, the wrongs which may have caused it, or the 
rights it was intended to secure, are nothing. Revolution is politi- 
cally justified by nothing but success. 

And, prudentially, a revolution must be justified, both by success 
and by a capacity to organize a better government than that which 
it subverts. It is not enough that the original government may 
have been bad or badly administered, for unless it be successful, and 
unless the new form of administration or the new rules be better 
than the old, the uncertainties and strife of revolution have been 
incurred in vain. The French Revolution, though productive in the 
end of good results, was not, prudentially, a justifiable revolution. 
Its success was merely temporary, and the government it organized 
instead of that of the beheaded Louis was in all respects worse than 
that they cast down. It was wrong prudentially, first, because it 
failed of permanent success, and second, because, while its power con- 
tinued, it did not improve the government, but rather made it 
worse. 



444 ANGLO-SAXON" SYSTEM IN NORTH AMERICA. 

The revolution of the colonies was right religiously, politically, 
and prudentially. 

It was right religiously, for it was a revolution against a tyranny, 
that is, against a government which assumed, in the language of King 
James, to " exercise power beyond right." 

It was justified 'politically, by. complete and permanent success. 

It was justified prudentially, by its creation of a government 
whose constitution is the admiration of the world. If the virtue of 
the people rise again to an equality with the incomparable wisdom 
of the Constitution, then the lover of free institutions may cry, Esto 
perpetua ; and the prophet may respond, Erit perpetua. If other- 
wise — ? 



NOTE. 

1. The following significant article, which we give verbatim as recently pub- 
lished in a leading daily paper of the city of New York, will serve to show the 
power of a vigorous and homogeneous minority to turn the machinery of gov- 
ernment from its purposes of common benefit to the subservience of petty and 
peculiar interests : 
" THE YANKEE TYRANNY-THE CENTRAL AND WESTERN STATES 
MERE "HEWERS OF WOOD" TO NEW ENGLAND. 

" Previous to the present civil war the agitators of New England were eternally 
denouncing the alleged ascendency of the seven Cotton States in shaping and 
controlling the policy of our National Government, 'Everything is shaped to 
benefit the Cotton States,' was the cry of the New England fanatics. ' The 
whole Government is in the hands of the South, and every measure of legislation 
is held subordinate to Southern interests.' That there was a small basis of fact 
for these assertions is not to be denied, and that basis had this extent, no more: 
The seven Cotton States demanded that the Constitution of the United States 
should be upheld, and that no legislation hostile to their property interests in 
the institution of slavery should be undertaken by Congress. They also further 
demanded, in one single instance — the Fugitive Slave Law — that Congress should 
make some legislative provision to enforce one of the rights guaranteed to them 
by the Constitution against the treasonable and unconstitutional opposition 
thereto of these same New England fanatics. This was about all the ' peculiar 
legislation ' the South demanded, and, in turn for receiving it, they — -a wholly 
agricultural and producing people — acquiesced without murmur in all the legis- 
lation demanded by the complex commercial, agricultural, and manufacturing 
interests of the remainder of the Union. 



DISPUTE TTITH ENGLAND. RIGHT OF REVOLUTION. 445 

" Well, the Union was at last broken up, the South being no longer able to 
bear peacefully the constant irritation and dangers resulting from the aggressive 
character of New England's anti-slavery fanaticism. The fourteen Senators from 
the seven Cotton States not only lost their ascendency in our national affairs, but 
stepped out of the Union altogether. And now what do we find to be the re- 
sult ? Just this : That the twelve Senators of the six New England States have 
adopted the r6le which they so vehemently denounced in what they were pleased 
to call the ' Black Gulf Squadron,' and that our whole national policy is to-day 
subservient to the interests and dictates, the bigotries and narrow, puritanical 
prejudices, of the twelve Senators who, forming the 'Black Republican Squad- 
ron,' are sent from the New England States to Washington. Our present actual 
masters are more sordid, grasping, and cruel than were the alleged Southern 
managers of the past. They legislate with a view exclusively to New England 
interests, and their object would seem to be to throw all the burdens of taxation 
and revenue upon the other portions of the loyal States, while compelling us all, 
by high protective and prohibitory importation duties, to purchase New England 
manufactures, however inferior to those we could obtain much cheaper abroad, 
at just such prices as may suit the pockets — we will not say consciences, for 
they appear to have none — of New England's manufacturing aristocracy. 

" The main burdens of our internal revenue were thrown by the legislation of 
last winter upon two articles — whiskey and tobacco — in which the New England 
States have but the slightest interest, while our custom-house duties were ad- 
vanced to figures making regular importation all but certainly unprofitable, and 
of necessity driving the trade, heretofore centred at New York, to be mainly 
transacted thereafter by active parties of smugglers along the Canadian border. 
So much is this the case, that the Secretary of the Treasury is now devising 
means to check this very smuggling, which has reached, even while yet in its in- 
fancy, enormous proportions — Secretary Fessenden apparently forgetting Sir 
Robert Peel's maxim, as the result of English experience, that ' it is utterly im- 
possible to check any smuggling which, if successful, will pay a profit of over 
thirty per cent. In our case, however, the profits of running certain articles 
into the United States from Canada will be many hundreds per cent. ; nor can 
this be stopped in any manner, unless we build along the Canadian frontier such 
a wall as divides the Chinese from the old Tartar empire. Even this would 
hardly suffice ; for, with such a profit as New England greed has left open to 
the smugglers, it would be a remunerative speculation to start a hundred large 
balloons in this species of traffic. 

"In the last session of the Senate, let it not be forgotten, the chairman of 
every important committee was a New Englander, the presiding officer was a 
New Englander, and all the legislation ground out was either to benefit New 
England interests, or to supply food to New England bigotries and hates. The 
trade of New York city was to be destroyed by imposing duties which would 
force foreign merchandise up to Canada, and thence, by smuggling, into the 
United States ; while New England was to avoid the heavy burden of taxation, 



446 ANGLO-SAXON SYSTEM IIS" NORTH AMERICA. 

in great measure, by placing the heaviest excise duties of our internal revenue 
upon two articles in which her interests are insignificant. Her six States, with 
an aggregate population of three million one hundred and thirty-five thousand 
three hundred and one, according to the census of 1860, are represented by 
twelve Senators, holding the chairmanship of all the most important committees 
of the Senate of the Union ; while New York, with a population of three mil- 
lion eight hundred and eighty-seven thousand five hundred and forty-two, accord- 
ing to the same census, has but two members in the Senate ; and these two, 
upon every occasion in which they attempted to defend the interests of New York 
and the Central States, were roughly overriden and voted down by the ' Black 
Republican Squadron ' from New England. 

" Thus it is that history repeats itself. The Puritans fled to this country 
under the pretence of a desire to secure religious liberty ; but no sooner had they 
obtained it for themselves than they commenced burning Quakers, noncon- 
formists, witches,- and all others whose tenets were not identical with their own, 
or whose practices they could not understand. They protested against the as- 
cendancy of the ' Black Gulf Squadron ' in our national affairs, even provoking 
a civil war rather than submit to it ; but no sooner are they given a chance of 
power than we find the 'Black Republican Squadron' in full sweep, with the 
black flag hoisted against the rights, interests, and opinions of every section of the 
Union. Our whole Government to-day is one of Yankee ideas, and the most 
miserable sort of Yankee philanthropic notions. The sceptre thrown down by 
the extreme South as it rushed out of the Union is now wielded more fiercely 
and remorselessly by the extreme Northeastern section of our people. 

"When will the day come, it may be asked, in which the great Central and 
Western States will assert their natural supremacy, and crush out the extremists, 
or corner-men of the continent, as we may call them — one faction of these resid- 
ing in the southeast, and the other in the northeast corner of the Atlantic sea- 
board? When will the day come that we of the Centre and West shall be 
4 Americans,' and not ' Yankees,' in the eyes of Europe, and, indeed, of all the 
world? We are called 'Yankees' now — even by our Southern foes, who 
know better, geographically — merely because it is seen that we are the helots 
of a Yankee oligarchy, patiently submitting to Yankee rule, and fighting out a 
war which had its origin in Yankee intolerance and bigotry. With seven hundred 
and fifty thousand more population than the six New England States put to- 
gether, we have but two representatives in the Senate of the United States, while 
New England has twelve ; and not content with foisting on us the greater part 
of the burdens of the war, while at the same time ruining the trade and marine of 
our greatest city — the greatest city on the continent — New England has now cap- 
ped the climax of her oppressions by so arranging it that, while but twelve and a 
half per cent, of her population has been enrolled for the coming draft, no less 
than twenty-six per cent, of our population in the first ten districts of New York 
have been enrolled for the same purpose ! Does this really mean that the lives 
of two and a fraction citizens of New York are but worth the life of one Massa- 



DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION. 447 

chusetts man ? Or will the Bay State assert that one of her lanky sons is able to 
whip two and something over of our New York athletes ? The question is a 
pertinent one : for, as things are now progressing, no one can tell how soon 
these questions may bo brought to a very practical test. The only remedy for 
these evils is for the Central and Northern States to make a strong alliance, 
offensive and defensive, during the progress of the Chicago Convention, and to 
place upon a platform, opposed alike to Southeastern and Northeastern ex- 
tremists, some conservative soldier or statesman, who shall be the vigorous ex- 
ponent of a national, anti-corner policy." — New York Heeald. 



CHAPTEE XT. 

INDEPENDENCE. 

FIRST CONGRESS OP COLONIAL DELEGATES — ASSERTION OF RIGHTS — NON-INTERCOURSE 

PETITION TO THE KING ADYICE TO MASSACHUSETTS LORD NORTH'S MOTION 

REJECTED — ADJOURNMENT OF CONGRESS — ITS PROCEEDINGS AFTER REASSEM- 
BLING DEBATE ON THE PROPOSITION TO DECLARE THE INDEPENDENCE OF THE 

COLONIES COMMITTEE APPOINTED TO DRAFT A FORM OF CONFEDERATION 

FURTHER STEPS TOWARDS THE ADOPTION OF THE DECLARATION ITS FINAL SIG- 
NATURE BY THE MEMBERS OF CONVENTION MATTER OF THE DECLARATION 

WHENCE DERIVED — ITS LEGAL AND CONSTITUTIONAL EFFECT — ITS TRUE 
GRANDEUR. 

The first Congress of delegates " chosen and appointed by 
the several colonies and provinces in North America to take 
into consideration the actual condition of the same, and the diffi- 
culties subsisting between them and Great Britain," was held in 
Philadelphia, on the 5th of September, 1774. Delegates attended 
from New Hampshire, Massachusetts Bay, Bhode Island and 
Providence Plantations, Connecticut, New York, New Jersey, 
Pennsylvania, the Delaware Counties, Maryland, Yirginia, and 
South Carolina. On the 14th of September, delegates appeared 
from North Carolina. It was not till the following year that an 
informal representative of Georgia was admitted. 

On the following day after the adoption of rules of order, Con- 
gress appointed a committee " to state the rights of the colonies in 
general, the several instances in which those rights had been vio- 
lated or infringed, and the means most proper to be pursued for 
obtaining a restoration of them." Another committee was appointed 
" to examine and report the several statutes which affected the trade 
and manufactures of the colonies." 

On the 24th of September, Congress resolved that the dele- 



INDEPENDENCE. 449 

gates would confine themselves to the consideration of such rights 
as had been infringed by acts of the British Parliament after the 
year 1763, postponing the further consideration of the general state 
of American rights to a future day. 

On the 14th of October, Congress made a declaration and 
adopted resolutions relative to the rights and grievances of the 
colonies. It was unanimously resolved " that the respective colo- 
nies are entitled to the common law of England, and more especially 
to the great and inestimable 'privilege of being tried bg their peers of the 
vicinage, according to the course of that law ; •" " that they were 
entitled to the benefit of such statutes as existed at the time of 
their colonization, and which they have, by experience, respectively 
found to be applicable to their several and local circumstances ; " 
and that their ancestors, at the time of their immigration, were 
" entitled to all the rights, liberties, and immunities of free and 
natural-born subjects within the realms of England." 

Previously to this date, resolutions of commercial non-inter- 
course with Great Britain, until the grievances of America 
should be redressed, had been adopted, and on the 20th of October, 
a formal agreement for this purpose was entered into by Congress. 
At different times afterwards letters were sent to the Canadian 
colonies, inviting their cooperation ; and an address to the people of 
Great Britain was published, setting forth the grievances and justi- 
fying the conduct of the people of the colonies ; after which and 
other unimportant matters, Congress adjourned on the 22d of 
October, to meet again at Philadelphia on the 10th of May, 1775. 

On the appointed day Congress reassembled, and on the 13th 
Lyman Hall was admitted as a delegate from the parish of St. 
John's, in the colony of Georgia ; but not considering himself as 
the representative of that colony, he declined voting, except on 
occasions when Congress did not vote by colonies. Non-intercourse 
with colonies not represented in Congress was resolved upon, in- 
cluding the colony of Georgia, except the parish of St. John's 
represented by Mr. Hall. 

On the 26th of May, it was determined " that the colonies be 
put immediately into a state of defence ; that a fresh petition to 



450 INDEPENDENCE. 

the king, with a view to reconcile differences, be prepared ; and 
that a letter to the people of Canada be reported." This letter, 
which was approved the day following, and ordered to be signed by 
the President, solicits the friendship of the Canadians, calls upon 
them to assert their rights, and exhorts them against hostilities. 

On the 9th of June, in consequence of a letter from Massachu- 
setts Bay, which had been previously under consideration, Congress 
resolved that the governor and lieutenant-governor of that colony 
were to be considered as absent and their offices vacant ; and it 
was recommended to the Provincial Convention to write letters to 
the inhabitants of the several places which were entitled to repre- 
sentation in Assembly, requesting them to choose representa- 
tives; and that the Assembly, when chosen, should elect coun- 
cillors; and that such Assembly or Council should exercise the 
powers of government until a governor of his majesty's appointment 
would consent to govern the colony according to its charter. This 
decision of Congress, it will be observed, was exactly in accordance 
with the limitation of rebellion in Magna Charta, to the continuance 
of wrong on the king's part. It did not assume the extreme posi- 
tion of the Bill of Rights, that the absence of the sovereign or his 
representative vacates and abdicates his right of sovereignty. 

The most important step was now taken, by the organization of 
an army under Washington, and Congress at the same time re- 
solved that they would " maintain, assist, and adhere to George 
Washington, with their lives and fortunes, in the same cause." 
This step was followed by the emission of bills of credit to the 
amount of two millions of dollars, for the redemption of which the 
credit of the twelve confederated colonies was pledged. From 
this time to the close of the session various acts occupied the atten- 
tion of Congress. A petition to the king ; another address to the 
British people, invoking sympathy and forbearance ; a letter of 
thanks for sympathy, addressed to the corporation of the city of 
London ; a like address of thanks to the Assembly of Jamaica ; a 
further issue of bills of credit ; the appointment of Benjamin Frank- 
lin as postmaster-general ; and an address to the people of Ire- 
land — all indicate a spirit of conciliation, moderation, and determi- 
nation worthy of their cause. Two more important circumstances 



INDEPENDENCE. 451 

indicate a growing feeling of union among them, and their sense 
of the increased strength it imparted. On the 20th of July, Con- 
gress was informed by a letter from the convention of Georgia that 
that colony had acceded to the general association, and appointed 
delegates to attend the Congress. On the 31st, Congress declared 
a resolution of the British House of Commons, commonly called 
Lord North's motion, inadmissible as the basis of reconciliation. 
This resolution proposed, under certain restrictions, to transfer the 
right of taxing the colouies to the colonial assemblies ; and it was 
rejected, among other reasons, because, in the opinion of Congress 
it imported only a suspension of the mode, and not a renunciation, 
of the pretended right to tax the colonies. 

On the 1st of August, Congress adjourned to the 5th of Septem- 
ber, 1775, and on their reassembling, the delegates from Georgia 
produced their credentials and took their seats. Its principal acts 
tending to complete independence of the mother country were as 
follows : On the 13th of October, Congress ordered two armed 
vessels to be fitted out. On the 3d of November it was resolved 
to recommend to the Provincial Council of New Hampshire, which 
had applied for advice, to call a full and free representation of the 
people, and to establish such a form of government as would best 
promote the happiness of the people, &c, during the dispute between 
Great Britain and the colonies. A similar resolution was entered 
into in relation to South Carolina. On the 20th of November 
seizures and captures were authorized under commissions to be 
granted by Congress, together with the condemnation of British 
vessels employed against the colonies. On the 2d of December an 
exchange of prisoners was declared proper. On the 4th of Decem- 
ber a proclamation by Lord Dunmore called forth a recommenda- 
tion to Virginia similar to that formerly made to New Hampshire 
and South Carolina. On the 6th of December a determination was 
expressed to retaliate for any undue severities inflicted by the 
British on persons favoring, aiding, or abetting the cause of the 
colonies. On the 13th of December a report was sanctioned for 
fitting out a naval armament of thirteen ships, of which five were 
to be of thirty-two guns each. On the 17th of February a 






452 INDEPENDENCE. 

standing committee of five was appointed for superintending the 
treasury. On the 27th of February the middle and southern 
colonies were divided into two military departments. On the 
9th of March it was resolved that no oath by way of ted should be 
exacted of the inhabitants of the colonies by military officers. On the 
23d of March privateering was authorized against the enemies of 
the United Colonies. 

On the 10th of May it was resolved to recommend to the re- 
spective assemblies and conventions of the United Colonies, where 
no government sufficient to the exigencies of their affairs had been 
established, to adopt such governments as should, in the opinion 
of the representatives of the people, best conduce to the happiness 
and safety of their constituents in particular and of America in 
general. A preamble to this resolution, agreed to on the 15th 
of May, stated the intention to be totally to suppress the exercise 
of every kind of authority under the British crown. This resolu- 
tion was in effect a declaration of independence, only to be consum- 
mated by the great measure now to be narrated. 

" In Congress, Friday, June 7tb, 1776," says Mr. Jefferson, 
" the delegates from Virginia moved, in obedience to instructions 
from their constituents, that the Congress should declare that these 
United Colonies are, and of right ought to be, free and independ- 
ent States ; that they are absolved from all allegiance to the Brit- 
ish crown ; that all political connection between them and the 
state of Great Britain is, and ought to be, totally dissolved ; and 
that measures should be immediately taken for procuring the as- 
sistance of foreign powers, and a confederation formed to bind the 
colonies more closely together." The resolutions were debated on 
Saturday, the 8th, and Monday, the 10th, when able arguments for 
and against their adoption were presented. Omitting references to 
considerations of mere expediency, the points of constitutional in- 
terest in this discussion, as preserved by Mr. Jefferson, may be 
compared as follows. It was argued : 

Against the resolutions, by Wilson, In favor of the resolutions, by J. 

Robert R. Livingston, E. Rutledge, and Adams, Lee, Wythe, and others : 
others : 

That though they were friends to That no gentleman had argued 



INDEPENDENCE. 



453 



the measures themselves, and saw the 
impossibility that we should ever again 
be united with Great Britain, yet they 
were against adopting them at this 
time : 

That the conduct we had formerly 
observed was wise and proper now, of 
deferring to take any capital step till 
the voice of the people drove us into it : 

That they were our power, and 
without them our declarations could 
not be carried into effect : 



That the people of the middle col- 
onies (Maryland, Delaware, Pennsyl- 
vania, the Jerseys, and New York) 
were not yet ripe for bidding adieu to 
British connection, but that they were 
fast ripening, and, in a short time, 
would join in the voice of America. 



against the policy or the right of sep- 
aration from Britain, nor had supposed 
it possible we should ever renew our 
connection; that they had only op- 
posed its being now declared : 

That the question was not whether, 
by a declaration of independence, we 
should make ourselves what we are 
not ; but whether we should declare a 
fact which already exists : 

That as to the people or Parliament 
of England, we had always been inde- 
pendent of them, their restraints on 
our trade deriving efficacy from our 
acquiescence only, and not from any 
rights they possessed of imposing them ; 
and that so far our connection had been 
federal only, and was now dissolved by 
the commencement of hostilities : 

That as to the king, we had been 
bound to him by allegiance, but that 
this bond was now dissolved by his con. 
sent to the late act of Parliament, by 
which he declares us out of his pro- 
tection, and by his levying war on us — 
a fact which had long ago proved us 
out of his protection, it being a certain 
position in law, that allegiance and 
protection are reciprocal, the one ceas- 
ing when the other is withdrawn : 

That James II. never declared the 
people of England out of his protec- 
tion; yet his actions proved it, and 
the Parliament declared it : 

No delegates, then, can be denied) 
or ever want, a power of declaring an 
existent truth. 

That the delegates from the Dela- 
ware Counties having declared their 
constituents ready to join, there are 
only two colonies, Pennsylvania and 
Maryland, whose delegates are abso- 
lutely tied up , and that these had, by 
their instructions, only reserved a right 



454, 



INDEPENDENCE. 



That the resolution entered by this 
house on the 15th of May, for sup- 
pressing the exercise of all powers de- 
rived from the crown, had shown, by 
the ferment into which it had thrown 
these middle colonies, that they had not 
yet accommodated their minds to a 
separation from the mother country : 

That some of them had expressly 
forbidden their delegates to consent to 
such a declaration, and others had 
given no instructions, and consequei t- 
ly no powers to give such consent : 



That if the delegates of any par- 



of confirming or rejecting the meas- 
ure: 

That the instructions from Penn- 
sylvania might be accounted for from 
the time in which they were drawn, 
near a twelvemonth ago, since which 
the face of affairs has totally changed : 
That within that time it had be- 
come apparent that Britain was deter- 
mined to accept nothing less than a 
carte blanche, and that the king's an- 
swer to the lord mayor, aldermen, and 
common council of London, which had 
come to hand four days ago, must have 
satisfied every one of this point : 

That the people wait for us to lead 
the way ; that they are in favor of the 
measure, though the instructions given 
by some of their representatives are not : 
That the voice of the representa- 
tives is not always consonant with the 
voice of the people, and that this is 
remarkably the case in these middle 
colonies. 

That the effect of the resolution of 
the 15th of May had proved this; 
which, raising the murmurs of some 
in the colonies of Pennsylvania and 
Maryland, called forth the opposing 
voice of the freer part -of the people, 
and proved them to be the majority 
even in these colonies : 

That the backwardness of these 
two colonies might be ascribed, partly 
to the influence of proprietary power 
and connections, and partly to their 
having not yet been attacked by the 
enemy : 

That these causes were not likely 
to be soon removed, as there seemed 
no probability that the enemy would 
make either of these the seat of this 
summer's war : 

That it would be vain to wait ei- 



INDEPENDENCE. 



455 



ticular colony had no power to declare 
such colony independent, certain they 
were, the others could not declare it 
for them ; the colonies being as yet 
perfectly independent of each other : 



ther weeks or months for perfect una- 
nimity, since it was impossible that all 
men should ever become of one senti- 
ment on any question : 

That the conduct of some colonies, 
from the beginning of this contest, had 
given reason to suspect it was their 
settled policy to keep in the rear of 
the confederacy, that their particular 
prospect might be better, even in the 
worst event : 

That, therefore, it was necessary 
for those colonies who had thrown 
themselves forward, and hazarded all 
from the beginning, to come forward 
now also, and put all again to their 
own hazard : 

That the history of the Dutch Rev- 
olution, of whom only three states con- 
federated at first, proved that a seces- 
sion of some colonies would not be so 
dangerous as some apprehended : 

That it would be idle to lose time 
in settling the terms of alliance, till we 
had first determined we would enter 
into alliance. 

In the course of this debate it appeared, says Jefferson, " that 
the colonies of New York, New Jersey, Pennsylvania, Delaware, 
Maryland, and South Carolina were not yet matured for falling 
from the parent stem, but that they were fast advancing to that 
state ; " and it was therefore deemed prudent to postpone the final 
decision to the 1st of July. In the mean time, however, a commit- 
tee was appointed to draft a declaration to the effect " that the 
United Colonies are, and of right ought to be, free and independ- 
ent States ; that they are absolved from all allegiance to the Brit- 
ish crown ; and that all political connection between them and the 
state of Great Britain is, and ought to be, totally dissolved." The 
committee consisted of Jefferson, J. Adams, Franklin, Sherman, 
and R. R. Livingston. Next day, the 11th of June, a resolution 
was adopted to appoint a committee to prepare and digest a form 
of confederation to be entered into between the colonies, and an- 



That if such a declaration should 
now be agreed to, these delegates must 
retire, and possibly their colonies 
might secede from the Union : 

That it was prudent to fix among 
ourselves the terms on which we would 
form alliance, before we declared we 
would form one at all events. 



456 INDEPENDENCE. 

other committee to prepare a plan of treaties to be proposed to for- 
eign powers. 

On the 25th of June, a declaration of the deputies of Pennsyl- 
vania, in their provincial conference assembled, expressing their 
willingness to concur in a vote declaring the United Colonies free 
and independent States, was laid before Congress. On the 28th of 
June, the committee appointed to draft a declaration of indepen- 
dence brought it in, and it was ordered to lie on the table. On Mon- 
day the 1st of July, a resolution of the convention of Maryland, pas- 
sed on the 28th of June, authorizing the deputies of that colony to 
concur in declaring the United Colonies free and independent States, 
was laid before Congress and read. On the same day the house 
" resolved itself into a committee of the whole and resumed the 
consideration of the original motion made by the delegates of Vir- 
ginia, which, being again debated through the day, was carried in 
the affirmative by the votes of New Hampshire, Connecticut, Mas- 
sachusetts, Rhode . Island, New Jersey, Maryland, Virginia, North 
Carolina, and Georgia. South Carolina and Pennsylvania voted 
against it. Delaware had but two members present, and they were 
divided. The delegates from New York declared they were for it 
themselves, and were assured their constituents were for it; but 
that their instructions having been drawn near a twelvemonth before, 
when reconciliation was still the general object, they were enjoined 
by them to do nothing which should impede that object. They, 
therefore, thought themselves not justifiable in voting on either side, 
and asked leave to withdraw from the question ; which was given 
them. The committee rose and reported their resolution to the 
house. Mr. Edward Rutledge, of South Carolina, then requested 
the determination might be put off to the next day, as he believed 
his colleagues, though they disapproved of the resolution, would 
then join in it for the sake of unanimity. The ultimate question, 
whether the house would agree to the resolution of the committee, 
was accordingly postponed to the next day, when it was again 
moved, and South Carolina concurred in voting for it. In the mean 
time, a third member had come post from the Delaware Counties, 
and turned the vote of that colony in favor of the resolution. Mem- 
bers of a different sentiment attended that morning from Pennsyl- 



ISTDEPENDEXCE. 457 

vania also : her vote was changed, so that the whole twelve colonies, 
who were authorized to vote at all, gave their voices for it ; and 
within a few days ( July 9) the convention of New York approved 
of it, and thus supplied the void occasioned by the withdrawing of 
her delegates from the vote. 

" Congress proceeded, the same day, to consider the Declaration 
of Independence, which had been reported, and laid on the table the 
Friday preceding, and on Monday r erred to a committee of the 
whole. The pusillanimous idea that we had friends in England 
worth keeping terms with still haunted the minds of many. For 
this reason passages which conveyed censures on the people of Eng- 
land were struck out, lest they should give them offence. The 
clause, too, reprobating the enslaving the inhabitants of Africa, was 
struck out in complaisance to South Carolina and Georgia, who had 
never attempted to restrain the importation of slaves, and who, on 
the contrary, still wished to continue it. Our Northren brethren 
also, I believe, felt a little tender under those censures ; for though 
their people had very few slaves themselves, yet they had been 
pretty considerable carriers of them to others. The debates, hav- 
ing taken up the greater part of the 2d, 3d, and 4th days of July, 
were, on the evening of the last, closed ; the Declaration was reported 
by the committee, agreed to by the house, and signed by every 
member present, except Mr. Dickinson." (Writings of Jefferson, i. 
p. 14.) It was thereupon resolved " that copies of this Declaration 
be sent to the several assembles, conventions, and committees or 
councils of safety, and to the several commanding officers of the 
Continental troops, that it may be proclaimed in each of the United 
States, and at the head of the army." 

If we examine the matter of this venerable constitutional docu- 
ment, we discover in it no pretensions to originality or novelty. 
The doctrine of the natural equality of men ; the inalienability of 
certain human rights ; the obligation of governments to secure them ; 
the necessity of the consent of the governed to the validity of gov- 
ernments ; and the right of the people to alter or abolish governments 
which become destructive of their proper ends, are all derived from 
Locke's treatise on government. The proposition that the king had 
" abdicated government here by declaring us out of his protection 

20 



458 INDEPENDENCE. 

and making war against us," is a simple application of the theory of 
the feudal law, which presumed that the allegiance of the vassal 
was always conditional on the protection of the lord. These are 
the only general propositions of the declaration. The form of its 
particular accusations of the English sovereign will be readily per- 
ceived by those who have attentively observed the clauses of the 
Petition of Right and of the Bill of Rights, to have been borrowed 
from those documents. The writer of the Declaration had but an 
old tale to repeat. The story of the colonies was the old story of 
usurpation and resistance told in the history of every people which 
has ever aimed at the achievement of a system of free government. 
He made no attempt to make it striking by exaggeration or by in- 
troducing new features. Setting out with a few general propo- 
sitions — which he modestly describes as " self-evident truths," but 
which had never, not even in Locke, been rendered evident but 
by a labored demonstration, till the wonderful simplicity of their 
enunciation in the Declaration made them axiomatic — he proceeds 
to tell in language the most simple and direct the tyrannous usur- 
pations of the sovereign, the forbearance of the people, and their 
final and irrevocable judgment that they were absolved from his 
allegiance ; appealing to the Supreme Judge of the world to attest 
the righteousness of their cause and the rectitude of their intentions. 
In the matter of the Declaration of Independence there is no new 
principle for the profound student ; but its manner is so exquisitely 
fitted to the subject, so striking in its plain, manly directness, and 
so touching from the total want of affectation in its style, that it 
persuades at once the reason and the heart as no display of ostenta- 
tious rhetoric or labored argument could possibly persuade. Never 
was such a tale so well told. 

As to its effect, the Declaration of Independence was in the 
strictest sense a declaration. It wrought no change in the political 
status of the States. It simply declared that the usurpations of the 
sovereign had already brought about a change, by which, from 
being colonies of England, they had become free and independent 
States. It did not make them free. Their ancestors, the original 
colonists, were free-born Englishmen, and had transmitted their 
rights and liberties undiminished to their children. Magna Charta 



INDEPENDENCE. 459 

had ever been the fundamental law in the colonies ; and their code 
was always the equitable code of English common law. The Revo- 
lution, therefore, was not undertaken to obtain, but to maintain their 
freedom : — not because they were not freemen, but because a tyran- 
nous attempt was made to make them slaves. When they became 
independent they were no more free than they and their fathers had 
always been. Magna Charta and the English common laws were 
still theirs, as they are still ours ; for, having been the fundamental 
law in every colony, they still remained supreme when the colonies 
became States ; and never yet having been abrogated, they are still 
the fundamental law in almost every American State. The Declara- 
tion, then, neither made the States free, nor condescended to prove 
their right to freedom. It simply declared the fact. In like man- 
ner, the Declaration did not make them independent. It proclaimed 
that they were already independent. Their sovereign, by the abuse 
of a sovereignty lawfully acquired, had given them the right of rebel- 
lion and revolution against him ; so that they were now justified in 
rejecting his sovereignty and in achieving their independence by 
force nf arms. But it is not the right to achieve independence that 
is asserted by the Declaration. It is the fact of actual exist- 
ing independence. And this assertion was based both on law and 
on fact. On law, because the king of England had declared them 
"out of his protection," and as the object of government is protec- 
tion, his renunciation of the duties was an abdication of the right of 
sovereignty. On fact, because the royal authority had ceased to 
exist de facto in the colonies, and was sustained only within the lines 
and posts of his invading army. The Declaration, however, rests 
its assertion of the independence of the States only on the ground 
of right under the law of nature and of nations. A government, 
however legitimate in its authority and righteous in its acts, might 
have been temporarily overthrown by a turbulent people, and the 
colonial governments might in this way have been independent de 
facto though not dejvre. The declaration of the independence of 
the States is therefore wisely made, not on the ground that they had 
been apparently successful in rebellion against their sovereign, but 
that their sovereign had forfeited his sovereignty by a repudiation 
of its obligations, and, by thus leaving them without a sovereign, 



460 INDEPENDENCE. 

had forced them, without any act of theirs, into a position of com- 
plete independence. The whole legal effect, then, of the Declaration 
of Independence was to proclaim to the world the fact — and the 
cause which had produced the fact — that " these United Colonies 
were and of right ought to be, free and independent States." 

The true grandeur of the Declaration is the courage which dared 
to assume so bold a position, in defiance of so mighty an empire as 
that of England. That thirteen petty colonies, scattered over half a 
continent, and with an average population of less than 230,000 
inhabitants, should exact the last letter of the bond of civilized 
society from an empire on whose victorious arms the sun shiDes 
through his whole diurnal revolution, was an act whose character 
could only be discriminated after the event as one of matchless 
folly or of matchless heroism. Measured by ordinary rules, it was 
in the last degree rash and imprudent ; but the colonists were not 
guided by those ordinary rules which measure everything by cir- 
cumstances. They were guided by the rules of heroes, measuring 
their difficulties by the greatness of their own souls. It is this 
heroic magnanimity, nowhere expressed but everywhere apparent in 
the Declaration of Independence, that has made it for all coming 
time the model and the hope of struggling and oppressed mankind. 



In Congress, July 4th, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN 
UNITED STATES OF AMERICA. 

When, in the course of human events, it becomes necessary for 
one people to dissolve the political bands which have connected 
them with another, and to assume, among the powers of the earth, 
the separate and equal station to which the laws of nature and of 
nature's God entitle them, a decent respect to the opinions of man- 
kind requires that they should declare the causes which impel them 
to the separation. 

We hold these truths to be self-evident, that all men are created 
equal ; that they are endowed by their Creator with certain unalien- 
able rights ; that among these, are life, liberty, and the pursuit of 
happiness. That, to secure these rights, governments are instituted 
among men, deriving their just powers from the consent of the 
governed; that, whenever any form of government becomes de- 
structive of these ends, it is the right of the people to alter or to 
abolish it, and to institute a new government, laying its foundation 
on such principles, and organizing its powers in such form, as to 
them shall seem most likely to effect their safety and happiness. 
Prudence, indeed, will dictate that governments long established, 
should not be changed for light and transient causes ; and, accord- 
ingly, all experience hath shown, that mankind are more disposed 
to suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But, when a 
long train of abuses and usurpations, pursuing invariably the same 
object, evinces a design to reduce them under absolute despotism, 
it is their right, it is their duty, to throw off such government, and 



462 ^DEPENDENCE. 

to provide new guards for their future security. Such has "been 
the patient sufferance of these colonies, and such is now the neces- 
sity which constrains them to alter their former systems of govern- 
ment. The history of the present king of Great Britain is a his- 
tory of repeated injuries and usurpations, all having, in direct 
object, the establishment of an absolute tyranny over these States. 
To prove this, let facts be submitted to a candid world : 

He has refused his assent to laws the most wholesome and 
necessary for the public good. 

He has forbidden his Governors to pass laws of immediate and 
pressing importance, unless suspended in their operation till his 
assent should be obtained ; and, when so suspended, he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of 
large districts of people, unless those people would relinquish the 
right of representation in the legislature ; a right inestimable to 
them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, un- 
comfortable, and distant from the depository of their public records, 
for the sole purpose of fatiguing them into compliance with his 
measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause 
others to be elected ; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise ; 
the State remaining, in the mean time, exposed to all the danger of 
invasion from without, and convulsions within. 

He has endeavored to prevent the population of these States ; 
for that purpose, obstructing the laws for naturalization of foreigners ; 
refusing to pass others to encourage their migration hither, and 
raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure 
of their offices, and the amount and payment of their salaries. 



INDEPENDENCE. 463 

He has erected a multitude of new offices, and sent hither 
swarms of officers to harass our people, and eat out their substance. 

He has kept among us, in times of peace, standing armies, with- 
out the consent of our legislature. 

He has affected to render the military independent of, and supe- 
rior to, the civil power. 

He has combined, with others, to subject us to a jurisdiction 
foreign to our constitution, and unacknowledged by our laws ; 
giving his assent to their acts of pretended legislation : 

For quartering large bodies of armed troops among us : 

For protecting them, by a mock trial, from punishment, for any 
murders which they should commit on the inhabitants of these 
States : 

For cutting off our trade with all parts of the world : 

For imposing taxes on us without our consent : 

For depriving us, in many cases, of the benefits of trial by jury : 

For transporting us beyond seas to be tried for pretended of- 
fences : 

For abolishing the free system of English laws in a neighboring 
province, establishing therein an arbitrary government, and enlarg- 
ing its boundaries, so as to render it at once an example and fit in- 
strument for introducing the same absolute rule into these colonies : 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the powers of our governments : 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his 
protection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, 
and destroyed the lives of our people. 

He is, at this time, transporting large armies of foreign mer- 
cenaries to complete the works of death, desolation, and tyranny, 
already begun, with circumstances of cruelty and perfidy scarcely 
paralleled in the most barbarous ages, and totally unworthy the 
head of a civilized nation. 

He has constrained our fellow citizens, taken captive on the high 



464 INDEPENDENCE. 

seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections amongst us, and has en- 
deavored to bring on the inhabitants of our frontiers, the merciless 
Indian savages, whose known rule of warfare is an undistinguished 
destruction, of all ages, sexes, and conditions. 

In every stage of these oppressions, we have petitioned for re- 
dress, in the most humble terms ; our repeated petitions have been 
answered only by repeated injury. A prince, whose -character is 
thus marked by every act which may define a tyrant, is unfit to be 
the ruler of a free people. 

Nor have we been wanting in attention to our British brethren. 
We have warned them, from time to time, of attempts made by 
their legislature to extend an unwarrantable jurisdiction over us. 
We have reminded them of the circumstances of our emigration 
and settlement here. We have appealed to their native justice and 
magnanimity, and we have conjured them, by the ties of our common 
kindred, to disavow these usurpations, which would inevitably inter- 
rupt our connections and correspondence. They, too, have been 
deaf to the voice of justice and consanguinity. We must, there- 
fore, acquiesce in the necessity, which denounces our separation, 
and hold them, as we hold the rest of mankind, enemies in war, in 
peace, friends. 

We, therefore, the representatives of the UNITED STATES 
OF AMERICA, in GENERAL CONGRESS assembled, appeal- 
ing to the Supreme Judge of the World for the rectitude of our in- 
tentions, do, in the name, and by the authority of the good people 
of these colonies, solemnly publish and declare, That these United 
Colonies are, and of right ought to be, fxct drib Subepettbettt 
States ; that they are absolved from all allegiance to the British 
crown, and that all political connexion between them and the state 
of Great Britain, 'is, and ought to be, totally dissolved ; and that, as 
FREE AND INDEPENDENT STATES, they have full power 
to levy war, conclude peace, contract alliances, establish commerce, 
and to do all other acts and things which INDEPENDENT 
STATES may of right do. And, for the support of this dec- 
laration, with a firm reliance on the protection of UlUuINQE 



INDEPENDENCE. 



465 



|)U(Dt).3D(!:iX(£(!:, we mutually pledge to each other, our lives, 
our fortunes, and our sacred honor. 

The foregoing declaration was, by order of Congress, engrossed, 
and signed by the following members : 

JOHN HANCOCK. 



New Hampshire. 

JOSIAH BaETLETT, 

William Whipple, 
Matthew Thoenton. 

Rhode Island. 
Stephen Hopkins, 
William Elleey. 

Connecticut. 
Roger Sheeman, 
Samuel Huntington, 
William Williams, 
Olivee Woloott. 

New York. 
William Floyd, 
Philip Livingston, 
Feancis Lewis, 
Lewis Mobeis. " 

New Jersey. 
Richard Stockton, 
John Witherspoon, 
Francis Hopklnson, 
John Hart, 
Abraham Clark. 

Pennsylvania. 
Robeet Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
George Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
Geoege Ross. 



20* 



Massachusetts Bay. 
Samuel Adams, 
John Adams, 
Robert Treat Paine, 
Elbeidge Geery. 

Delaware. 
C^sar Rodney, 
George Read, 
Thomas M'Kean. 

Maryland. 
Samuel Chase, 
William Paca, 
Thomas Stone, 
Chaeles Carroll, of Carrollton 

Virginia. 
George Wythe, 
Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, jun. 
Francis Lightfoot Lee, 
Carter Beaxton. 

North Carolina. 
William Hoopee. 
Joseph Hewes, 
John Penn. 

South Carolina. 
Edwaed Rutledge, 
Thomas Heywaed, jun. 
Thomas Lynch, jun. 
Aethur Middleton. 

Georgia. 
Button Gwinnett, 
Lyman Hall, 
George Walton. 



466 INDEPENDENCE. 

Resolved, That copies of the Declaration be sent to the several 
assemblies, conventions, and committees, or councils of safety, and 
to the several commanding officers of the continental troops ; that 
it be proclaimed in each of the United States, and at the head of 
the army. 



CHAPTER XYI. 

CONFEDERATION. 

COMMITTEE ON CONFEDERATION APPOINTED BEFORE THE DECLARATION WAS ADOPTED 
ITS REPORT — DEBATE ON THE PLAN OF CONFEDERATION — PROPORTION OF TAX- 
ATION — REMARKS OF MR. CHASE JOHN ADAMS MR. HARRISON — MR. PAYNE — 

DR. WITHERSPOON — DEBATE ON STATE VOTES IN CONGRESS — REMARKS OF MR. 

CHASE — DR. FRANKLIN DR. WITHERSPOON — JOHN ADAMS — MR. HOPKINS — 

MR. WILSON — ADOPTION OF THE CONFEDERATION — ITS VALUE. 

While the Declaration of Independence was still under the 
consideration of Congress, certain necessary measures were taken 
towards the forming of a plan of confederation among the colonies. 
On the 11th of June 1776, it was resolved that a committee should 
be appointed to propose and digest a form of confederation. On 
the following day, it was resolved that the committee should consist 
of a member from each colony, and it was appointed accordingly. 

On the 12th of July, eight days after the adoption of the Dec- 
laration of Independence, the committee appointed to draw Articles 
of Confederation made their report, and the subject was from time 
to time debated in a committee of the whole, until the 15th of 
November 1777, when a copy of the original draft, with a few verbal 
amendments only, was by Congress ordered to be sent to the legis- 
latures of all the United States to be by them considered, in order 
that if it should meet their approbation they might authorize their 
delegates to ratify the same in Congress. On the 17th of November 
a circular letter was approved and ordered to be sent to the several 
States, with copies of the Confederation ; and on the 29th a commit- 
tee was appointed to procure a translation of it into French, and to 
report an address to the inhabitants of Canada &c. Thus the plan 
of Confederation passed for the present from the hands of Congress 



468 CONFEDERATION. 

to the States, with whom alone rested its final acceptance or rejec- 
tion. 

In Congress, as we learn from the valuable notes of Mr. Jefferson ? 
the discussion turned chiefly on those articles which determined the 
proportion, or quota of money, which each State should furnish to the 
common treasury, and the manner of voting in Congress. The first 
of these articles was, in the original draft, expressed in these 
words. 

" Art. XI. All charges of war, and all other expenses that shall be incurred 
for the common defence, or general welfare, and allowed by the United States 
assembled, shall be defrayed out of a common treasury, which shall be supplied 
by the several colonies in proportion to the number of inhabitants of every age, 
sex, and quality, except Indians not paying taxes, in each colony — a true amount 
of which, distinguishing the white inhabitants, shall be triennially taken and 
transmitted to the Assembly of the United States." 

Mr. Chase moved that the quotas should be fixed, not by the 
number of the inhabitants of every condition, but by that of the 
■" white inhabitants." He admitted that taxation should always be 
in proportion to property ; that this was, in theory, the true rule ; 
but that, from a variety of difficulties, it was a rule which could never 
be adopted in practice. The value of the property in every State 
could never be estimated justly and equally. Some other measures 
for the wealth of the state must, therefore, be devised, some standard 
referred to, which would be more simple. He considered the num- 
ber of inhabitants a tolerably good criterion of property, and that 
this might always be obtained. He therefore thought it the best 
mode that we could adopt, with one exception only : he observed 
that negroes are property, and, as such, cannot be distinguished from 
the lands or personalities held in those States where there are few 
slaves ; that the surplus of profit which a Northern farmer is able to 
lay by, he invests in cattle, horses &c, whereas a Southern farmer 
lays out the same surplus in slaves. There is no more reason, there- 
fore, for taxing the Southern States on the farmer's head, and on his 
slave's head, than the Northern ones on their farmers' heads and the 
heads of their cattle ; that the method proposed would, therefore, 
tax the Southern States on their numbers and their wealth conjunctly, 
while the Northern would be taxed on numbers only ; that negroes, 



CONFEDERATION. 469 

hi fact, should not be considered as members of the state more than 
cattle, and that they have no more interest in it. 

Mr. John Adams observed, that the numbers of people are 
taken by this article, as an index of the wealth of the State, and not 
as subjects of taxation ; that, as to this matter, it was of no conse- 
quence by what name you called your people, whether by that of 
freemen or of slaves ; that in some countries the laboriDg poor are 
called freemen, in others they were called slaves ; but that the dif- 
ference as to the state was imaginary only. What matters it whether 
a landlord, employing ten laborers on his farm, give them annually 
as much money as will buy them the necessaries of life, or give them 
those necessaries at short hand ? The ten laborers give as much 
wealth to the state, increase its exports as much in the one case as 
the other. Certainly five hundred freemen produce no more profits, 
no greater surplus for the payment of taxes, than five hundred 
slaves. Therefore the state in which are the laborers called freemen, 
should be taxed no more than that in which are those called slaves. 
Suppose, by an extraordinary operation of nature or of law, one 
half of the laborers of a state could, in the course of one night, be 
transformed into slaves ; would the state be made poorer or less 
able to pay taxes ? That the condition of the laboring poor in most 
countries — that of the fishermen, particularly, of the Northern 
States — is as abject as that of slaves. It is the number of laborers 
which produces the surplus for taxation, and numbers, therefore, 
indiscriminately, are the fair index to wealth ; that it is the use of 
the word " property" here in its application to some of the people 
of the state which produces the fallacy. How does the Southern 
farmer procure slaves ? Either by importation, or by purchase 
from his neighbor. If he imports a slave, he adds one to the num- 
ber of laborers in his country, and proportionally to its profits and 
ability to pay taxes. If he buys from his neighbor, it is only a 
transfer of a laborer from one farm to another, which does not 
change the annual produce of the state, and therefore should not 
change its tax ; that if a Northern farmer works ten laborers on his 
farm, he can, it is true, invest the surplus of ten men's labor in cattle ; 
but so may the Southern farmer working ten slaves; that a state of 
one hundred thousand freemen can maintain no more cattle than 



470 CONFEDERATION. 

one of one hundred thousand slaves, therefore they have no more 
of that kind of property. That a slave may, indeed, from the cus- 
tom of speech, be more properly called the wealth of his master, 
than the free laborer might be called the wealth of his employer ; 
but as to the state, both were equally its wealth, and should there- 
fore equally add to the quota of its tax. 

Mr. Harrison proposed, as a compromise, that two slaves 
should be counted as one freeman. He affirmed that slaves did not 
do as much work as freemen, and doubted if two effected more than 
one ; that this was proved by the price of labor — the hire of a la- 
borer in the Southern colonies being from £8 to £12, while in the 
Northern it was generally £24. 

Mr. Wilson said that if this amendment should take place, 
the Southern colonies would have all the benefit of slaves, whilst the 
Northern ones would bear the burden ; that slaves increase the 
profits of a state, which the Southern States mean to take to them- 
selves; that they also increase the burden of defence, which would, 
of course, fall so much heavier on the Northern ; that slaves occupy 
the places of freemen and eat their food. Dismiss your slaves, and 
freemen will take their places. That other kinds of property were 
pretty equally distributed through all the colonies ; — there were as 
many cattle, horses, and sheep in the North as the South, and South 
as the North 5 but not so as to slaves ; — that experience has shown 
those colonies have been always able to pay most which have the 
most inhabitants, whether they be black or white ; and the practice 
of the Southern colonies has always been to make every farmer 
pay poll taxes upon his laborers, whether they be black or white. 
He acknowledged that freemen work the most 5 but they consume 
the most also. They do not produce a greater surplus for taxation. 
The slave is neither fed nor clothed so expensively as a freeman. 
Again, white women are exempted from labor generally, but negro 
women are not. In this, then, the Southern States had an advan- 
tage as the Article now stands. It has sometimes been said that 
slavery is necessary because the commodities they raise would be 
too dear for market if cultivated by freemen ; but now it is said 
chat the Jabor of the slave is the dearest. 

Mr. Payne urged the original resolutions of Congress, to 
proportion the quotas of the States to the number of souls. 



CONFEDERATION. 471 

Dr. Witherspoon was of opinion that the value of land 
and houses was the best estimate of the wealth of a nation, and 
that it was practicable to obtain such a valuation. This is the 
true barometer of wealth. The one now proposed was imperfect 
in itself, and unequal between the States. It has been objected 
that negroes eat the food of freemen, and therefore should be 
taxed ! horses also eat the food of freemen; therefore, they also 
should be taxed. It had been said, too, that in carrying slaves 
into the estimate of the taxes the State is to pay we do no more 
than those States themselves do, who always. take slaves into the 
estimate of the taxes the individual is to pay. But the cases were 
not parallel. In the Southern colonies slaves pervade the whole 
colony ; but they do not pervade the whole continent. That as 
to the original resolution of Congress to proportion the quotas ac- 
cording to the souls, it was temporary only, and related to the 
moneys heretofore omitted ; whereas we are now entering into a 
new compact, and therefore stand on original ground. 

The result of this interesting discussion was that on the 1st of 
August the proposed amendment was rejected, and the original 
Article adopted by the votes of New Hampshire, Massachusetts 
Rhode Island, Connecticut, New York, New Jersey, and Pennsyl- 
vania, against those of Delaware, Maryland, Virginia, and North 
and South Carolina. Georgia was divided. The arguments con- 
vinced none on either side, as the vote sufficiently proves. The 
Southern delegates, however, yielded gracefully to the desire of the 
majority ; nor was there much further opposition offered to the 
Article on the part of the Southern legislators before whom the 
plan of confederation was afterwards laid for ratification or rejection. 

The other article was in these words : — 

" Art. XVII. In determining questions each colony shall have one vote." 

It was debated on July 30th and 31st, and on the 1st of 
August. 

Mr. Chase observed that this article was more likely to 
divide the colonies than any other proposed in the draft then under 
consideration. That the larger colonies had threatened they 
would not confederate at all if their weight in Congress should not 



472 COKFEDEEATION. 

be equal to the numbers of people they added to the Confederacy ; 
while the smaller ones declared against a union if they did not 
retain an equal vote for the protection of their rights. That it 
was of the utmost consequence to bring the parties together ; as, 
should we sever from each other, either no foreign power will ally 
with us at all, or the different States will form different alliances, 
and thus increase the horrors of those scenes of civil war and blood- 
shed which in such a state of separation and independence would 
render us a miserable people. That our importance, our interests, 
our peace, required that we should confederate, and that mutual 
sacrifices should be made to effect a compromise of this difficult 
question. He was of opinion the smaller colonies would lose their 
rights if they were not, in some instances, allowed an equal vote ; 
and therefore, that a discrimination should take place among the 
questions which should come before Congress. That the smaller 
States should be secured in all questions concerning life or liberty, 
and the greater ones in all respecting property. He therefore 
proposed that in votes relating to money the voice of each colony 
should be proportioned to the number of its inhabitants. 

Dr. Franklin thought that the votes should be so propor- 
tioned in all cases. He took notice that the Delaware counties had 
bound up their delegates to disagree to this article. He thought 
it very extraordinary language to be held by any State that they 
would not confederate with us unless we would let them dispose of 
our money. Certainly if we vote equally we ought to pay equally ; 
but the smaller States will hardly purchase the privilege at this 
price. That had he lived in a State where the representation, 
originally equal, had become unequal by time and accident, he 
might have submitted rather than disturb government ; but that 
we should be very wrong to set out in this practice when it is in 
our power to establish what is right. That at the time of the 
union between England and Scotland, the latter had made the 
objection which the smaller States now do ; but experience had 
proved that no unfairness had ever been shown them ; that their 
advocates had prognosticated that it would again happen as in 
times of old that the whale would swallow Jonah; but he thought 
the prediction reversed in event, and that Jonah had swallowed the 



CONFEDERATION. 473 

whale ; for the Scotch had, in part, got possession of the govern- 
ment, and gave laws to the English. He reprobated the original 
agreement of Congress to vote by colonies, and therefore was for 
their voting in all cases according to the number of taxables. 

Dr. Witiierspoon opposed every alteration of the Article. 
All men admitted that a confederacy is necessary. Should 
the idea get abroad that there is likely to be no union among 
us, it will damp the minds of the people, diminish the glory of our 
struggle, and lessen its importance ; because it will open to our 
view future prospects of war and dissension among ourselves. If an 
equal vote be refused, the smaller States will become vassals to the 
larger ; and all experience has shown that the vassals and subjects 
of free states are the most enslaved. He instanced the helots of 
Sparta and the provinces of Rome. He observed that foreign 
powers discovering this blemish, would make it a handle for dis- 
engaging the smaller States from so unequal a confederacy. That 
the colonies should, in fact, be considered as individuals ; that as 
such, in all disputes, they should have an equal vote ; and that they 
are now collected as individuals making a bargain with each other, 
and of course had a right to vote as individuals. That in the 
East India Company they voted by persons, and not by their pro- 
portions of stock. That the Belgic Confederacy voted by prov- 
inces. That in questions of war the smaller States were as much 
interested as the larger, and therefore should vote equally ; and 
indeed that the larger States were more likely to bring war on 
the Confederacy in proportion as their frontier was more extensive. 
He admitted that equality of representation was an excellent prin- 
ciple, but then it must be of things which are coordinate ; that is, 
of things similar and of the same nature ; that nothing relating to 
individuals could ever come before Congress ; nothing but what 
would respect colonies. He distinguished between an incorporating 
and a federal union. The union of England and Scotland was an 
incorporating one ; yet Scotland had sufiFered by that union ; for 
that its inhabitants were drawn from it by the hopes of places and 
employments ; nor was it an instance of equality of representation, 
because, while Scotland was allowed nearly a thirteenth of represen- 
tation, they were to pay only one-fortieth of the land tax. He 



474 CONFEDERATION. 

expressed his views that in the present enlightened state of men's 
minds we might expect a lasting confederacy, if it was founded on 
fair principles. 

Mr. John Adams advocated the voting in proportion to num- 
bers. He said, that we stand here as the representatives of the 
people ; that in some States the people are many, in others they 
are few ; that therefore their vote here should be proportioned to 
the numbers from whom it comes. Reason, justice, and equity 
never had justice enough on the face of the earth. to govern the 
councils of men. It is interest alone which does it, and it is interest 
alone which can be trusted; that therefore the interests within 
doors should be the mathematical representatives of the interests 
without doors. 

Besides the fallacy of Mr. Adams' reasoning which assumed 
that members of the Continental Congress were representatives of 
the people at large instead of what they actually were, representa- 
tives of their respective States, he argued against the individuality 
of States themselves, and maintained that the object of confedera- 
tion was to obliterate State lines and distinctions so as to incor- 
porate all under one consolidated government. 

He said that the individuality of the colonies is a mere sound. 
Does the individuality of a colony increase its wealth or numbers ? 
If it does, pay equally. If it does not add weight in the scale of 
the confederacy, it cannot add to their rights nor weigh in argu- 
ment. A has £50, B £500, C £1,000 in partnership. Is it just 
that they should equally dispose of the moneys of the partnership? 
It has been said we are independent individuals making a bargain 
together. The question is not what we are now, but what we 
ought to be when our bargain shall be made. The confederacy is 
to make us one individual only. It is to form us, like separate 
pieces of metal, into one common mass. We shall no longer retain 
our separate individuality, but become a single individual as to all 
matters submitted to the confederacy. Therefore all reasons, 
which prove the justice and expediency of equal representation in 
other assemblies, hold good here. It had been objected that a 
proportional vote would endanger the smaller States. He answered 
that an equal vote would endanger the larger. Virginia, Pennsyl- 



CONFEDERATION. 475 

vania and Massachusetts were the three greater colonies. Consider 
their distance, their difference of products, of interest, and of man- 
ners, and it was apparent they can never have an interest or an 
inclination to combine for the oppression of the smaller ; that the 
smaller would naturally divide on all questions with the larger ; 
that Rhode Island, from its relation, similarity and intercourse, 
would generally pursue the same objects with Massachusetts ; Jer- 
sey, Delaware, and Maryland, with Pennsylvania. 

Mr. Hopkins observed that there were four larger, four 
smaller and four middle sized colonies. That the four largest 
would contain more than half the inhabitants of the confederating 
States, and therefore would govern the others as they should please. 
That history affords no instance of such a thing as equal representa- 
tion. The Germanic body vote by states ; the Helvetic body does 
the same ; and so does the Belgic Confederacy. That too little is 
known of the ancient confederations to say what was their practice. 

Mr. Wilson went beyond even Mr. Adams in his advocacy 
of consolidation, maintaining that the colonies, by the mere sending 
of delegates to Congress had already sacrificed their individuality. 
As to those matters, he said, which are referred to Congress, we 
are not so many States ; we are one large State. We lay aside our 
individuality whenever we come here. 

The views of Mr. Adams and Mr. Wilson did not meet the 
approbation of Congress, and the article as it stood was trium- 
phantly adopted. 

The draft of the Confederate Constitution was presented, as we 
have before observed, on the 12th of July, 1776, and debated from 
time to time until the 15th of November, 1777, when it was ap- 
proved in Congress and ordered to be transmitted to the States for 
their consideration. On the 26th of June a form of ratification 
was adopted and engrossed on parchment for signature by the 
delegates acting by authority of their respective States. On subse- 
quent examination, however, it was found that only New Hamp- 
shire, New York, Virginia, and North Carolina accepted the 
Articles as they stood, with a proviso on the part of New York 
that the same should not be binding on it until all the other States 
in the Union should have ratified them also. Massachusetts, 



476 CONFEDERATION. 

Rhode Island, Connecticut, New Jersey, Pennsylvania, Maryland, 
and South Carolina proposed alterations, additions or amendments, 
which were all considered by Congress, and all rejected. The 
delegate from Georgia had received no instructions from his con- 
stituents, but had no doubt they would ratify the Articles of Con- 
federation without amendment. Delaware and North Carolina, 
having no delegates present, made no formal report ; but the 
unanimous accession of North Carolina to the confederation had 
been already signified by her Governor Caswell so early as the 26th 
of April. On the 9th of July, 1778, the ratification of the Articles 
of Confederation was signed on the part of their respective States 
by the delegates from New Hampshire, Massachusetts Bay, Rhode 
Island and Providence Plantations, Connecticut, New York, Penn- 
sylvania, Yirginia and South Carolina, acting under the powers 
vested in them. The delegates from New Jersey, Delaware, and 
Maryland informed Congress that they had not been empowered to 
ratify and sign ; North Carolina and Georgia were not represented. 
In this critical condition of affairs a letter was addressed to the 
States which had not authorized their delegates to ratify the con- 
federation, urging them " to conclude the glorious compact which 
by uniting the wealth, strength, and councils of the whole, might 
bid defiance to external violence and internal dissensions whilst it 
secured the public credit at home and abroad." On the 21st of 
July the ratification was signed by the delegates of North Caro- 
lina ; and on the 24th by those of Georgia. The delegates of New 
Jersey, having received their powers, affixed their signatures on 
the 26th of November following. On the 5th of May, 1779, Mr. 
Dickinson and Mr. Vandyke signed the Articles of Confederation 
in behalf of the State of Delaware, Mr. M'Kean having previ- 
ously signed them on the 12th of February, at which time he had 
produced a power to that effect. Maryland had instructed her 
delegates not to agree to the Confederation until an equitable set- 
tlement should be made concerning Western lands; but on the 
30th of January, 1781, finding that the enemies of the country took 
advantage of the circumstance to disseminate opinions of an 
ultimate dissolution of the Union, the Legislature of the State em- 
powered their delegates to ratify and subscribe the Articles ; 



COXFEDEKxVTIOX. 4:11 

which was accordingly done on the 1st of March, 1781, and thus 
the ratification was completed. On the next day Congress assem- 
bled under the new powers committed to it by the Articles of Con- 
federation. 

Thus, at length, after nearly five years of continual debate and 
difficulty, was consummated the " Perpetual Union : ' of the States. 
It lasted practically two years, and nominally about eight. It did 
not materially add to the efficiency of government during the war 
with England ; nor did it in any great degree strengthen the bond 
of union between the States. Its importance, nevertheless, is not 
to be lightly estimated. Had the colonies achieved their indepen- 
dence with no closer tie between them than the military alliance 
rendered necessary by a foreign invasion, there is little reason to 
believe that they would ever after have united. Hence they would 
have become in peace totally independent ; and the usual animosi- 
ties of petty states would have been likely to embroil them with 
each other in continual feuds, such as disturbed the petty states of 
Italy in the middle ages. Neither after nor before the war could 
the States be induced to renounce their separate individuality or 
independence; and all movements towards a union were suspected 
by the smaller States of tending to consolidated power. The con- 
federation, therefore, which demonstrated the possibility of union 
without consolidation, and showed, however imperfectly, the capacity 
of the federative principle to meet the exigencies of their situation, 
was of immense importance to the future of the States. It was in 
fact a rough draft of the application of the Anglo-Saxon system to 
the circumstances of the colonies; admitting the necessity of union, 
but equally asserting separate sovereignty as the only possible or 
even safe foundation of the union. Its model was, in this view, 
of inestimable value to the framers of the later Constitution ; showing 
them at once the fundamental principle of a federal republic, and 
the difficulties to be apprehended in its operation. 



Articles of Confeoetatton. 



TO ALL TO WHOM THESE PRESENTS SHALL COME, 

We, the undersigned, Delegates of the States affixed to our names, 
send greeting : 

Whereas the delegates of the United States of America, in Con- 
gress assembled, did, on the fifteenth day of November, in the year 
of our Lord one thousand seven hundred and seventy -seven, and 
in the second year of the Independence of America, agree to cer- 
tain Articles of Confederation and Perpetual Union, between the 
states of New Hampshire, Massachusetts Bay, Rhode Island and 
Providence Plantations, Connecticut, New York, New Jersey? 
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina, and Georgia, in the words following, viz. : — 

Articles of Confederation and Perpetual Union, betiveen the States of 
New Hampshire, Massachusetts Bay, Rhode Island and Providence 
Plantations, Connecticut, New York, New Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North Carolina, South Carolina 
and Georgia. 

Article. 1. The style of this confederacy shall be " The Uni- 
ted States of America." 

Art. 2. Each state retains it sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right, which is not by 
this Confederation expressly delegated to the United States in 
Congress assembled. 

Art. 3. The said states hereby severally enter into a firm 
league of friendship with each other for their common defence, the 
security of their liberties, and their mutual and general welfare ; 
binding themselves to assist each other against all force offered to, 



CONFEDERATION. 479 

or attacks made upon, them, or any of them, on account of religion > 
sovereignty, trade, or any other pretence whatever. 

Art. 4. The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different states in this 
Union, the free inhabitants of each of these states — paupers, vaga- 
bonds, a iid fugitives from justice, excepted — shall be entitled to all 
privileges and immunities of free citizens in the several states; and 
the people of each state shall have free ingress and regress to and 
from any other state, and shall enjoy therein all the privileges of 
trade and commerce, subject to the same duties, impositions, and 
restrictions, as the inhabitants thereof, respectively, provided that 
such restrictions shall not extend so far as to prevent the removal 
of property imported into any state from any other state, of which 
the owner is an inhabitant ; provided also, that no imposition, duty, 
or restriction, shall be laid by any state on the property of the 
United States, or either of them. 

If any person, guilty of, or charged with, treason, felony, or 
other high misdemeanor, in any state, shall flee from justice, and be 
found in any of the United States, he shall, upon demand of the 
governor or executive power of the state from which he fled, be 
delivered up, and removed to the state having jurisdiction of his 
offence. 

Full faith and credit shall be given, in each of these states, to 
the records, acts, and judicial proceedings, of the courts and magis- 
trates of every other state. 

Art. 5. T?or the more convenient management of the general 
interests of the United States, delegates shall be annually appointed 
in such manner as the legislature of each state shall direct, to meet 
in Congress on the first Monday in November, in every year, with 
a power reserved to each state, to recall its delegates, or any of 
them, at any time within the year, and to send others in their stead 
for the remainder of the year. 

No state shall be represented in Congress by less than two, nor 
by more than seven members ; and no person shall be capable of 
being a delegate for more than three years in any term of six years ; 
nor shall any person, being a delegate, be capable of holding any 
office under the United States, for which he, or another for his 
benefit, receives any salary, fees, or emolument of any kind. 



480 CONFEDERATION". 

Each state shall maintain its own delegates in a meeting of the 
states, and while they act as members of the committee of the 
States. 

In determining questions in the United States in Congress 
assembled, each state shall have one vote. 

Freedom of speech and debate in Congress shall not be im- 
peached or questioned in any court or place out of Congress ; and 
the members of Congress shall be protected in their persons from 
arrests and imprisonments, during the time of their going to and 
from, and attendance on, Congress, except for treason, felony or 
breach of the peace. 

Art. 6. No state, without the consent of the United States in 
Congress assembled, shall send any embassy to, or receive any em- 
bassy from, or enter into any conference, agreement, alliance, or 
treaty, with any king, prince, or state ; nor shall any person holding 
any office of profit or trust under the United States, or any of them, 
accept of any present, emolument, office, or title, of any kind what- 
ever, from any king, prince, or foreign state ; nor shall the United 
States in Congress assembled, or any of them, grant any title of 
nobility. 

No two or more states shall enter into any treaty, confederation, 
or alliance whatever between them, without the consent of the 
United States in Congress assembled, specifying accurately the 
purposes for which the same is to be entered into, and how long it 
shall continue. 

No state shall lay any imposts or duties, which may interfere 
with any stipulations in treaties entered into, by the United States 
in Congress assembled, with any king, prince, or state, in pursu- 
ance of any treaties already proposed by Congress to the courts of 
France and Spain. 

No vessel of war shall be kept up in time of peace by any state, 
except such number only as shall be deemed necessary, by the United 
States in Congress assembled, for the defence of such state, or its 
trade ; nor shall any body of forces be kept up by any state, in time 
of peace, except such number only as, in the judgment of the Uni- 
ted States in Congress assembled, shall be deemed requisite to 
garrison the forts necessary for the defence of such state ; but every 



COiNTEDERATTON. 481 

state shall always keep up a well-regulated and disciplined militia, 
sufficiently armed and accoutred, and shall provide, and have con- 
stantly ready for use, in public stores, a due number of field-pieces 
and tents, and a proper quantity of arms, ammunition, and camp 
equipage. 

No state shall engage in any war without the consent of the 
United States in Congress assembled, unless such state be actually 
invaded by enemies, or shall have received certain advice of a 
resolution being formed by some nation of Indians to invade such 
state, and the danger is so imminent as not to admit of a delay till 
the United States in Congress assembled can be consulted ; nor 
shall any state grant commissions to any ships or vessels of war, nor 
letters of marque or reprisal, except it be after a declaration of war 
by the United States in Congress assembled, and then only against 
the kingdom or state, and the subjects thereof, against which war 
has been so declared, and under such regulations as shall be estab- 
lished by the United States in Congress assembled, unless such 
state be infested by pirates ; in which case, vessels of war may be 
fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States in Congress assembled shall 
determine otherwise. 

Art. 7. When land forces are raised by any state for the com- 
mon defence, all officers of, or under the rank of colonel shall be 
appointed by the legislature of each state, respectively, by whom 
such forces shall be raised, or in such manner as such state shall 
direct; and all vacancies shall be filled up by the state which first 
made the appointment. 

Art. 8. All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare, and allowed 
by the United States in Congress assembled, shall be defrayed out 
of a common treasury, which shall be supplied by the several States, 
in proportion to the value of all land, within each state, granted to 
or surveyed for any person, as such land, and the buildings and im- 
provements thereon, shall be estimated, according to such mode as 
the United States in Congress assembled shall, from time to time, 
direct and appoint. 

The taxes for paying that proportion shall be laid and levied 
21 



482 CONFEDEEATION. 

by the authority and direction of the legislatures of the several 
states, within the time agreed upon by the United States in Con- 
gress assembled. 

Art. 9. The United States in Congress assembled shall have 
the sole and exclusive right and power of determining on peace and 
war, except in the cases mentioned in the sixth article — of sending 
and receiving ambassadors — entering into treaties and alliances ; 
provided that no treaty of commerce shall be made whereby the 
legislative power of the respective states shall be restrained from 
imposing such imposts and duties on foreigners as their own people 
are subjected to, or from prohibiting the exportation or importation 
of any species of goods or commodities whatsoever — of establishing 
rules for deciding, in all cases, what captures, on land or water, 
shall be legal, and in what manner prizes taken byland or naval 
forces in the service of the United States shall be divided or appro- 
priated — of granting letters of marque and reprisal in times of 
peace — appointing courts for the trial of piracies and felonies com- 
mitted on the high seas, and establishing courts for receiving and 
determining finally appeals in all cases of capture; provided that 
no member of Congress shall be appointed a judge of any of the 
said courts. 

The United States in Congress assembled shall also be the last 
resort on appeal in all disputes and differences now subsisting, or that 
hereafter may arise, between two or more states, concerning bounda- 
ry, jurisdiction, or any other cause whatever ; which authority shall 
always be exercised in the manner following : Whenever the legis- 
lative or executive authority, or lawful agent, of any state in con- 
troversy with another, shall present a petition to Congress, stating 
the matter in question, and praying for a hearing, notice thereof 
shall be given by order of Congress to the legislative or executive 
authority of the other state in controversy, and a day assigned for 
the appearance of the parties, by their lawful agents, — who shall 
then be directed to appoint, by joint consent, commissioners or 
judges to constitute a court for hearing and determining the matter 
in question ; but if they cannot agree, Congress shall name three 
persons out of each of the United States,and from the list of such per- 
sons, each party shall alternately strike out one, the petitioners begin- 



CONFEDERATION. 483 

ning, until the number shall be reduced to thirteen ; and from that 
number not less than seven nor more than nine names, as Congress 
shall direct, shall, in the presence of Congress, be drawn out by 
lot ; and the persons whose names shall be so drawn, or any five of 
them, shall be commissioners or judges, to hear and finally deter- 
mine the controversy, so always as a major part of the judges, who 
shall hear the cause, shall agree in the determination ; and if either 
party shall neglect to attend at the day appointed, without showing 
reasons which Congress shall judge sufficient, or being present shall 
refuse to strike, the Congress shall proceed to nominate three per- 
sons out of each state, and the secretary of Congress shall strike in 
behalf of such party absent or refusing ; and the judgment and sen- 
tence of the court, to be appointed in the manner before prescribed, 
shall be final and conclusive ; and if any of the parties shall refuse 
to submit to the authority of such court, or to appear or defend 
their claim or cause, the court shall nevertheless proceed to pro- 
nounce sentence or judgment, which shall, in like manner, be final 
and decisive — the judgment or sentence, and other proceedings, 
being in either case transmitted to Congress, and lodged among the 
acts of Congress for the security of the parties concerned; provided 
that every commissioner, before he sits in judgment, shall take an 
oath, to be administered by one of the judges of the supreme or 
superior court of the state where the cause shall be tried, " well and 
truly to h ar and determine the matter in question, according to the lest 
of his judgment, without favor, affection, or hope of reward:' 1 ' 1 provided, 
also, that no state shall be deprived of territory for the benefit of 
the United States. 

All controversies concerning the private right of soil, claimed 
under different grants of two or more states, whose jurisdiction, as 
they may respect such lands, and the states which passed such 
grants, are adjusted, the said grants, or either of them, being at the 
same time claimed to have originated antecedent to such settlement 
of jurisdiction, shall, on the petition of either party to the Congress 
of the United States, be finally determined, as near as may be, in 
the same manner as is before prescribed for deciding disputes re- 
specting territorial jurisdiction between different states. 

The .United States in Congress assembled shall also have the 



484 CONFEDERATION. 

sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the re- 
spective states; fixing the standard of weights and measures through- 
out the United States : regulating the trade and managing all affairs 
with the Indians not members of any of the states, provided that 
the legislative right of any state within its own limits be not 
infringed or violated ; establishing and regulating post-offices from 
one state to another throughout all the United States, and exacting 
such postage on the papers passing through the same as may be 
requisite to defray the expenses of the said office ; appointing all 
officers of the land forces in the service of the United States, ex- 
cepting regimental officers ; appointing all the officers of the naval 
forces, and commissioning all officers whatever in the service of the 
United States ; making rules for the government and regulation of 
the said land and naval forces, and directing their operations. 

. The United States in Congress assembled shall have authority 
to appoint a committee to sit in the recess of Congress, to be 
denominated " a committee of the states," and to consist of one 
delegate from each state ; and to appoint such other committees and 
civil officers as may be necessary for managing the general affairs 
of the United States under their direction — to appoint one of their 
number to preside, provided that no person be allowed to serve in 
the office of president more than one year in any term of three 
years — to ascertain the necessary sums of money to be raised for the 
service of the United States, and to appropriate and apply the same 
for defraying the public expenses — to borrow money or emit bills on 
the credit of the United States, transmitting, every half year, to the 
respective states, an account of the sums of money so borrowed or 
emitted — to build and equip a navy — to agree upon the number 
of land forces, and to make requisitions from each state for its 
quota, in proportion to the number of white inhabitants in such 
state; which requisitions shall be binding; and thereupon the legisla- 
ture of each state shall appoint the regimental officers, raise the 
men, and clothe, arm, and equip them in a soldier-like manner, at 
the expense of the United States; and the officers and men so 
clothed, armed, and equipped, shall march to the place appointed, 
and within the time agreed on by the United States in Congress 



CONFEDERATION. 485 

assembled : but if the United States in Congress assembled shall, 
on consideration of circumstances, judge proper that any state 
should not raise men, or should raise a smaller number than its 
quota, and that any other state should raise a greater number of 
men than the quota thereof, such extra number shall be raised, 
officered, clothed, armed, and equipped, in the same manner as the 
quota of such state, unless the legislature of such state shall judge 
that such extra number cannot be safely spared out of the same ; in 
■which case they shall raise, officer, clothe, arm, and equip, as many 
of such extra number as they judge can be safely spared. And the 
officers and men so clothed, armed, and equipped, shall march to 
the place appointed, and within the time agreed on by the United 
States in Congress assembled. 

The United States in Congress assembled shall never engage in 
a war ; nor grant letters of marque and reprisal in time of peace ; 
nor enter into any treaties or alliances ; nor coin money ; nor regu- 
late the value thereof; nor ascertain the sums and expenses necessary 
for the defence and welfare of the United States, or any of them ; 
nor emit bills; nor borrow money on the credit of the United 
States; nor appropriate money; nor agree upon the number of 
vessels of war to be built or purchased, or the number of land or 
sea forces to be raised ; nor appoint a commander-in-chief of the 
army or navy, — unless nine states assent to the same; nor shall a 
question on any other point, except for adjourning from day to day, 
be determined, unless by the votes of a majority of the United 
States in Congress assembled. 

The Congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of six months ; and shall publish the journal of their 
proceedings monthly, except such parts thereof, relating to treaties, 
alliances, or military operations, as in their judgment require 
secrecy ; and the yeas and nays of the delegates of each state on 
any question shall be entered on the journal, when it is desired by 
any delegate ; and the delegates of a state, or any of them, at his or 
their request, shall be furnished with a transcript of the said jour- 



486 CONFEDERATION. 

cal, except such parts as are above excepted, to lay before the 
legislatures of the several states. 

Art. 10. The committee of the states, or any nine of them, 
shall be authorized to execute, in the recess of Congress, such of 
the powers of Congress as the United States in Congress assembled, 
by the consent of nine states, shall, from time to time, think expe- 
dient to vest them with ; provided that no power be delegated to 
the said committee, for the exercise of which, by the Articles of 
Confederation, the voice of nine states in the Congress of the Uni- 
ted States assembled is requisite. 

Art. 11. Canada, acceding to this Confederation, and joining 
in the measures of the United States, shall be admitted into, and 
entitled to, all the advantages of this union ; but no other colony 
shall be admitted into the same unless such admission be agreed to 
by nine States. 

Art. 12. All bills of credit emitted, moneys borrowed, and debts 
contracted, by or under the authority of CoDgress, before the 
assembling of the United States in pursuance of the present Con- 
federation, shall be deemed and considered as a charge against the 
United States, for payment and satisfaction whereof the said United 
States, and the public faith, are hereby solemnly pledged. 

Art. 13. Every state shall abide by the determination of the 
United States in Congress assembled, on all questions which, by 
this Confederation, are submitted to them. And the Articles of 
this Confederation shall be inviolably observed by every state, and 
the union shall be perpetual ; nor shall any alteration, at any time 
hereafter, be made in any of them, unless such alteration be agreed 
to in a Congress of the United States, and be afterwards confirmed 
by the legislature of every state. 

ratification. 

And whereas it has pleased the Great Grovernor of the world 
to incline the hearts of the legislatures we respectively represent in 
Congress, to approve of and to authorize us to ratify the said Arti- 
cles of Confederation and Perpetual Union : Know ye, That we, the 
undersigned delegates, by virtue of the power and authority to us 



CONFEDERATION. 487 

given for that purpose, do, by these presents, in the name and in behalf 
of our respective constituents, fully and entirely ratify and confirm 
each and every of the said Articles of Confederation and Perpetual 
Union, and all and singular the matters and things therein con- 
tained ; and we do further solemnly plight and engage the faith of 
our respective constituents, that they shall abide by the determina- 
tions of the United States in Congress assembled, on all questions 
which, by the said Confederation, are submitted to them ; and that 
the articles thereof shall be inviolably observed by the states we re- 
spectively represent ; and that the union shall be perpetual. 

In witness whereof, we have hereunto set our hands in Congress. Done at- 
Philadelphia, in the state of Pennsylvania, the ninth day of July, in the 
year of our Lord one thousand seven hundred and seventy eight, and in the 
third year of the Independence of America. 

On the part and behalf of the state of New Hampshire. 
Josiah Bartlett, John Wentworth, Jun., Aug. 8. 1778. 

On the part and behalf of the state of Massachusetts Bay. 
John Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Elbridge Gerry, Samuel Holten. 

On the part and behalf of the State of Rhode Island and Providence Plantations. 
William Ellery, John Collins. 

Henry Marchant, 

On the part and behalf of the state of Connecticut. 
Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 

On the part and behalf of the state of New York. 
Jas. Duane, Win. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and behalf of the state of New Jersey. 
Jno. Witherspoon, Nath. Scudder, Nov. 26, 1778. 

On the part and behalf of the state of Pennsylvania. 
Robert Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed, 22d July, 1778. 

Jona. Bayard Smith, 

On the part and behalf of the state of Delaware. 
Thos. M'Kean, Feb. 13, '79, Nicholas Van Dyke, 

John Dickinson, May' 5, '79. 



488 CONFEDERATION. 

On the part and behalf of the state of Maryland. 
John Hanson, March 1, '81, Daniel Carroll, do. 

On the part and behalf of the state of Virginia. 
Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the state of North Carolina. 
John Penn, July 21, "78, Corns. Harnett. 

Jno. Williams, 

On the part and behalf of the state of South Carolina. 
Henry Laurens, Richard Hutson, 

William Henry Drayton, Thos. Heyward, Jun. 

Jno. Mathews, 

On the part and behalf of the state of Georgia. 
Jno. Walton, July 24, "78, Edw'd Langworthy. 



CHAPTER XVII. 

ADOPTION OF THE CONSTITUTION. 

CIRCUMSTANCES UNDER WHICH IT WAS ADOPTED CONSTITUTIONAL POSITION OF THE 

COLONIES AFTER THE DECLARATION THAT OF LIMITED OR CONSTITUTIONAL 

GOVERNMENTS INDEPENDENT OF EACH OTHER YET UNITED — DISTINCTION 

BETWEEN A CONSOLIDATED AND A FEDERATIVE UNION WEAKNESS OF THE CON- 
FEDERATION FINANCIAL DIFFICULTIES — DIFFICULTY IN MAKING TREATIES 

OF FOREIGN ALLIANCE PROPOSITION IN CONGRESS CALL OF VIRGINIA — CON- 
VENTION AT ANNAPOLIS — ITS REPORT TO THE LEGISLATURES CONGRESS CALLS 

UPON THE STATES TO SEND DELEGATES TO A CONVENTION — IMPORTANCE OF THE 
PHRASEOLOGY OF THE CALL ASSEMBLING OF THE CONVENTION AT PHILADEL- 
PHIA PARTIES IN THE CONVENTION — THE MONARCHICAL PARTY THE LARGE 

STATE PARTY THE STATE RIGHTS PARTY — PROPOSITIONS OF MR. RANDOLPH 

OF MR. CHARLES PINCKNEY OF MR. PATTERSON — OF COLONEL HAMILTON 

TWENTY-THREE RESOLUTIONS OF CONVENTION WITH DATES OF THEIR ADOPTION 

DEBATES ON THE TniRD AND FOURTH RESOLUTIONS FROM LUTHER MARTIN 

EQUAL DIVISION OF THE CONVENTION ON THE SUBJECT OF REPRESENTATION IN 

CONGRESS — CONFERENCE — COMPROMISE DRAFT OF CONSTITUTION REPORTED 

OMISSION OF THE WORD XATIOXAL THE REASON THE REVISED DRAFT — OMIS- 
SION OF THE NAMES OF STATES IN THE PREAMBLE THE REASON SECESSION 

OF STATES FROM THE CONFEDERATION — UNANIMOUS ADOPTION OF THE CON- 
STITUTION IN CONVENTION ITS RECEPTION BY CONGRESS — RATIFICATIONS BY 

THE STATES ACT FOR PUTTING IT IN OPERATION WASHINGTON ELECTED 

PRESIDENT — IMPERFECTION OF THE CONSTITUTION AS ADOPTED — DECLARATIONS 

MADE AND AMENDMENTS OFFERED BY THE STATES MASSACHUSETTS — NEW 

HAMPSHIRE — SOUTH CAROLINA — VIRGINIA — NEW YORK RHODE ISLAND 

TWELVE AMENDMENTS PROPOSED BY CONGRESS — TEN OF THEM ACCEPTED BY 

THE STATES VALUE OF THE AMENDMENTS THE ELEVENTH AMENDMENT — THE 

TWELFTH — CONCLUDING OBSERVATIONS. 

As we are now about to enter on the history of the adoption 
of the Constitution, it is well that we should bear in mind the 
oircunistances under which it was adopted. 

From the date of the Declaration of Independence, when the 

21* 



490 ADOPTION" OF THE CONSTITUTION". 

final separation of the colonies from the mother country was pro- 
claimed to the world, each individual colony enjoyed complete self- 
government. Whatever portion of the sovereign authority in these 
communities may have been rightfully or wrongfully exercised by 
Britain, was at once transferred to the communities themselves. 
Yet not in such a way as to set the liberty or rights of the indi- 
vidual citizen at the mercy of a mere majority of his fellow citi- 
zens. The fundamental law of the colonies was still the common 
law of England. The rights and liberties for which the colonies 
had long been struggling and for usurpations against which they 
had declared the king of England to have forfeited his sovereignty 
over them, were the rights and liberties of English subjects. By 
the settlement of undivided sovereignty in the colonies them- 
selves* the existing law was not repealed, but rather confirmed and 
vindicated from invasions by assumed authority. The rights and 
liberties of individuals, as guaranteed by the great documents and 
charters of the English Constitution, were not abrogated, but main- 
tained and reasserted with more pressing instance. Hence the 
sovereignty of the colonies after the declaration of their independ- 
ence was limited in its exercise by the same restrictions as the 
sovereign power in England ; the rights of individuals were pro- 
tected by the same inestimable constitutions as before ; and the 
majority in each separate colony could lawfully pass no act contra- 
vening their provisions. It is an error, therefore, to imagine that 
the several colonies were ever without established laws or limita- 
tions to the exercise of sovereign power. They had from the mo- 
ment of their independence actually what, from their first establish- 
ment, they had demanded rightfully, the whole English Constitu- 
tion so far as it was applicable in their situation. It cannot be 
too frequently repeated that the State governments, whether in the 
hands of popular majorities or otherwise constituted, were from 
the first limited governments. Nor is it too much to say that if 
any constitutions had been subsequently adopted by majorities, or 
if any constitutions should ever hereafter be adopted by majori- 
ties in any of these States, setting at nought the franchise of the 
citizen as it then stood under the English Constitution, they would 
be mere usurpations, and their successful establishment would be 



ADOPTION OF TIIE CONSTITUTION. 491 

revolution. Magna Charta and the English common law are still 
the fundamental law in every State within the territory originally 
belonging to the thirteen States. State constitutions are in fact 
only express applications of the principles of Magna Charta and the 
common law to novel circumstances. Did they abrogate the wise 
provisions of these fundamental laws they would be null and void, 
or at best revolutionary ; for they would be subversive of the 
vested rights of individuals wrung from and conceded by our an- 
cient sovereigns in England, and maintained here by a war of 
years. 

The colonies, then, possessed from the moment of their inde- 
pendence governments of law. It is to be further observed that 
these were independent of each other. Between them there was 
no connection whatsoever. Each had been immediately connected 
with the mother country, from which it received its charter and 
the constitution of its separate provincial government, and such 
intercolonial connections as existed were entirely voluntary, con- 
veying to none a right of governing or controlling another. The 
colonies had been separately organized ; they became separately in- 
dependent, enjoying separate sovereignty over separate territories; 
the new fact of separation from England made no change in their 
relations to each other ; consequently they were still as independ- 
ent of each other as they had been hitherto. 

Yet in every step towards independence of the mother country 
they had been united. The first assembly of delegates " chosen 
and appointed by the several colonies and provinces in North 
America to take into consideration the actual situation of the same, 
and the differences subsisting between them and Great Britain," 
was immediately known as the congress of delegates of the United 
Colonies. The Declaration of Independence professed to emanate 
from " the representatives of the United States of America ; " and 
it affirmed aud published to the world that " these United Colonies 
are, and of right ought to be, free and independent States." And 
the first article of the subsequent confederation was in these words : 
"Article I. The style of this confederacy shall be 'The United 
States of America.' " From the first cooperation of the colonies 
in an attempt to settle their difficulty with the British Government 



492 ADOPTION OF THE CONSTITUTION. 

to the present clay, their combination has been known as " The 
Union.'''' Originally a mere combination for mutual advice on an 
occasion of peculiar perplexity, it became successively a defensive 
alliance, a confederation of independent powers, and a federal re- 
public; but in every instance it was called in popular speech "The 
Union." This is a circumstance of no small value in correcting 
the impression — unfortunately too common — that the notion of 
union necessarily includes that of consolidation. The Union of 
England and Scotland is a consolidated union, merging as it does 
two separate kingdoms into one united or consolidated kingdom. 
Even this union, according to Blackstone, is not indissoluble ; but 
would be resolved into its original elements or at least greatly en- 
dangered by any act which should abrogate or disregard the origi- 
nal conditions under which it was constituted, without M the mu- 
tual consent of both." Whence it appears that even a consolida- 
ted union does not in any true sense destroy the individuality of 
the parties to it ; and that the surrender of particular functions of 
individuality is dependent as to its perpetuity on an observance be- 
tween the parties " of those points which, when they were separate 
and independent nations, it was mutually stipulated should be ' fun- 
damental and essential conditions of the union.' " (Blackstone, 
Com. i. 97.) But the notion of consolidation has no place in the 
American Union. Nothing of the sort was dreamed of when the 
first congress of delegates assembled to take common counsel in 
Carpenter's Hall, Philadelphia. At that time the colonies were 
still British dependencies ; they had formed no bond of union with 
each other ; they were united only by the influence of common 
dangers, sympathies, and resolutions; it was this influence alone 
that made their " Union ; " but it was a true union for all that. 
There has never been a truer union than when the delegates of the 
United Colonies in Philadelphia " locked the doors, enjoining by 
word of honor secrecy on the members ; and all the while the peo- 
ple from New Hampshire to Georgia waited quietly, willingly, res- 
olutely prepared to do, not the lidding of that congress, but to ac- 
cept its conclusions as the voice of thirteen nations." Nor was there 
any thought of consolidation in the Declaration of Independence, 
which affirmed tha in their individual capacities as " free and in- 



ADOPTION OF THE CONSTITUTION. 493 

dependent States " — not as a free and independent state, or a free 
and independent people — they had " full power to levy war, con- 
elude peace, and contract alliances." It was as individual States 
and at different times that they authorized this declaration to be 
made ; and it was in right of their individual power " to contract 
alliances " that they cooperated in the war of independence, and 
adopted, while the war was being waged, the Articles of Confede- 
ration and Perpetual Union. Yet, without one thought of consoli- 
dation, was there ever a more perfect union than existed when 
the colonies, conscious of their mutual independence, " appealed 
to the Supreme Judge of the world for the rectitude of their in- 
tentions," and " for the support of their declaration, with a firm 
reliance on the protection of Divine Providence, mutually pledged 
to each other their lives, their fortunes, and their sacred honors " ? 
It is true that an attempt was made by Mr. Adams and others, as 
we have already seen, to effect a consolidation of the States into 
one state. " It has been said,'' he remarked, " that we are inde- 
pendent individuals making a bargain with each other. The ques- 
tion is not what we are now, but what we ought to be when our 
bargain shall be made. The confederacy is to make us one indi- 
vidual only ; it is to form us, like separate pieces of metal, into 
one common mass. We shall no longer retain our separate indi- 
viduality, but become a single individual," &c. Mr. Adams was 
mistaken. The States, under the confederation, did not " become 
a single individual ; " on the contrary, they did " retain their sep- 
arate individuality ; " and the very article — the most important in 
the draft of confederation — which he was so energetically oppos- 
ing, was triumphantly upheld. The truth is, that the Union was 
never weaker or more in danger of dissolution than under its first 
formal bond of confederation. The first Congress assembled under 
its provisions in 1781. In 1784, one year after peace was pro- 
claimed between England and the United States, the army of the 
latter was reduced to eighty men ; and there was no means of pro- 
viding for their support. " Each State," says Madison, " yielding 
to the voice of immediate interest or convenience, withdrew its 
support from the confederation, till the frail and tottering edifice 
was ready to fall upon our heads, and crush us beneath its ruins." 



494 adoption or THE CONSTITUTION'. 

The chief difficulty experienced by Congress and the confeder- 
eration was that they had received no powers to regulate com- 
merce. The States had consequently retained the right to impose 
such duties on exports and imports as their several legislatures 
might think proper. From this a twofold embarrassment resulted. 
Congress had no means of sustaining the public credit by levying 
duties for the liquidation of the public debt, or defraying the pub- 
lic expenses. They could only apportion the quota to be paid by 
each State ; and the States failing in their duty of replenishing the 
treasury, there was no way of compelling them. Coercion of States, 
however justifiable in the case of a repudiation of pecuniary obli- 
gations voluntarily entered into, was not within the powers of 
Congress. On the other hand, a serious embarrassment was felt 
by Congress in making commercial treaties with foreign states; for 
unless the States of the Union chose severally through their legis- 
latures to ratify the acts of Congress in this regard, by adopting 
such commercial regulations in their ports as might be necessary, ■ 
treaties made by Congress might be utterly inoperative; and in 
practice it was found that, with the best intention on the part of 
the States to carry out the recommendations of Congress, certain 
inconvenient irregularities, inseparable from the distinct action of 
thirteen different bodies, interfered with the efficiency of govern- 
ment and prevented its consistent action. In 1785 this impor- 
tant matter was under the consideration of Congress, and it was 
proposed that the first paragraph of the ninth of the Articles of 
Confederation should be altered so as to read thus : 

" The United States in Congress assembled shall have the sole 
and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article — of sending and 
receiving ambassadors — entering into treaties and alliances — of 
regulating the trade of the States, as well with foreign nations as 
each other, and of laying such imposts and duties, upon imports 
and exports, as may be necessary for the purpose ; provided, that 
the citizens of the States shall, in no instance, be subjected to pay 
higher imposts and duties than those imposed on the subjects of 
foreign powers ; provided, also, that the legislative power of the 
several States shall not be restrained from prohibiting the impor- 



ADOPTION OF THE CONSTITUTION. 495 

tation or exportation of any species of goods or commodities what- 
ever ; provided, also, that all such duties as may be imposed shall 
be collected under the authority and accrue to the use of the State 
in which the same shall be payable ; and provided, lastly, that 
every act of Congress, for the above purpose, shall have the assent 
of nine States in Congress assembled — of establishing rules for de- 
ciding, in all cases, what captures on land or water shall be legal, 
and in what manner prizes taken by land or naval forces in the 
service of the United States shall be divided or appropriated — of 
granting letters of marque and reprisal in time of peace — appoint- 
ing courts for the trial of piracies and felonies committed on the 
high seas, and establishing courts for receiving and determining 
finally appeals in all cases of capture ; provided, that no member 
of Congress shall be appointed judge of any of the said courts." 

A letter was also prepared to be sent to the States, setting 
forth the advantages to be expected from committing these powers 
to Congress. It was felt, however, that any proposition for amend- 
ing the act of confederation ought to emanate from the State legis- 
latures rather than from Congress; and so the matter dropped in 
Congress. 

After various movements in the same direction, the State of 
Virginia appointed a commission to " meet such commissioners as 
might be appointed by the other States in the Union, at a time and 
place to be agreed on, to take into consideration the trade of the 
United States ; to examine the relative situation and trade of the 
said States; to consider how far a uniform system in their com- 
mercial regulations may be necessary to their common interest and 
their permanent harmony; and to report to the several States such 
an act relative to this great object as, when unanimously ratified 
by them, will enable the United States in Congress assembled ef- 
fectually to provide for the same." The commissioners were also 
directed to transmit to the several States copies of the resolution 
under which their appointment had been made, with a circular re- 
questing their concurrence, and proposing a time and place for 
the meeting. 

Only four States, New York, New Jersey, Pennsylvania, and 
Delaware, at first supported the proposal of Virginia. Commis- 



496 ADOPTION OF THE CONSTITUTION". 

sioners from these met with the Yirginia commission at Annapolis 
on the 11th of September, 1786, and remained in session till the 
14th of the same month, when they made a joint report to their 
several legislatures. They set forth that they had felt it to be 
unadvisable to proceed with the business of their mission with so 
partial and defective a representation of the States as had assem- 
bled, a circumstance the more important as it appeared that com- 
missioners had been appointed from New Hampshire, Massachu- 
setts, Rhode Island, and North Carolina, though they had not at- 
tended at Annapolis. They nevertheless expressed an earnest and 
unanimous wish that speedy measures might be taken to effect a 
general meeting of the States in a future convention for the same 
and such other purposes as the situation of public affairs might be 
found to require. They also suggested that the commissioners to 
be appointed should be clothed with somewhat larger powers than 
had at first — except in the instance of New Jersey — been confided 
to them. The commissioners from New Jersey had been empow- 
ered " to consider how far a uniform system in their commercial reg- 
ulations and other important matters might be necessary to the com- 
mon interest and permanent harmony of the several States;" 
and the convention urged the States to issue similar commissions 
to their representatives. The reason of this recommendation they 
gave in these words : " That there are important defects in the 
system of the federal government is acknowledged by the acts of 
all those States which have convened in the present meeting; that 
the defects, upon a closer examination, may be found greater and 
more numerous than even these acts imply, is at least so far probable 
from the embarrassments which characterize the present state of our 
national affairs, foreign and domestic, as may reasonably be sup- 
posed to merit a deliberate and candid discussion in some mode 
which will unite the sentiments and councils of all the States. In 
the choice of the mode, your commissioners are of opinion that a 
convention of deputies from the different States, for the special and 
sole purpose of entering into this investigation, and digesting a 
plan for supplying such defects as may be discovered to exist, will 
be entitled to a preference, from considerations which will occur 
without being particularized. Your commissioners decline an emi- 



ADOPTION OF THE CONSTITUTION. 497 

meration of those national circumstances on which their opinion 
respecting the propriety of a future convention with more enlarged 
powers is founded ; as it would be a useless intrusion of facts and 
observations, most of which have been subjects of public discus- 
sion, and none of which can have escaped the penetration of those 
to whom they would in this instance be addressed. They are, how- 
ever, of a nature so serious as, in the view of your commissioners, 
to render the situation of the United States delicate and critical, 
calling for an exertion of the united virtue and wisdom of all the 
members of the confederacy." 

On the 21st of Febuary, 1787, Congress resumed the considera- 
tion of this weighty matter, and the following preamble and resolu- 
tion was adopted : 

" Whereas there is provision in the Articles of Confederation and 
Perpetual Union, for making alterations therein, by the assent of a 
Congress of the United States, and of the legislatures of the 
several States ; and whereas experience hath evinced that there are 
defects in the present confederation ; as a mean to remedy which, 
several of the States, and particularly the State of New York, by 
express instructions to their delegates in Congress, have suggested 
a convention for the purpose expressed in the following resolution ; 
and such convention appearing to be the most probable means of 
establishing in these States a firm national government, — 

" Resolved, That, in the opinion of Congress, it is expedient that, 
on the second Monday in May next, a convention of delegates, who 
shall have been appointed by the several States, be held at Phil- 
adelphia, for the sole and express purpose of revising the Articles 
of Confederation, and reporting to Congress and the several legisla- 
tures such alterations and provisions therein as shall, when agreed 
to in Congress and confirmed by the States, render the Federal 
Constitution adequate to the exigencies of government and the 
preservation of the Union." 

The lauguage of the foregoing preamble and resolution is im- 
portant to be observed, as showing at once what was and what was 
not contemplated in the proposed convention. The object was to 
11 establish in these States a firm national government " by " revis- 
ing " and making " alterations " in the existing Articles of Confed- 



498 ADOPTION OF THE CONSTITUTION". 

eration. Clearly, it was not intended to cliange the form of 
government, nor the terms of union; but simply to render the 
Federal Constitution, then existing, " adequate to the exigencies of 
government and the preservation of the Union." Before the 
adoption of the Constitution then to be revised, the States had been 
united only by alliance as independent foreign states. By its 
adoption they had been combined into a federal union of states 
which, though still, except in a few trifling matters, independent, 
were no longer foreign to each other. Having in specified particu- 
lars a common administration of the affairs of government, they 
had a quasi nationality in common ; and in treaties with foreign 
powers, they were in fact held to be a nation. But from the inde- 
pendent action of the States the Union was in danger of complete 
dissolution ; and its character of nationality was being rapidly 
obliterated. Congress, therefore, wisely contemplated — not the 
dissolution, but— the strengthening of the existing federal bond ; 
and the object of the convention was — not to create a nationality 
which already existed, but — to establish and confirm it. 

Scarcely, however, had the convention assembled, as they did 
on the 2d Monday in May, 1787 (though from the absence of a 
quorum it was not organized by the election of Washington as 
president until the 25th of May), when it appeared that very radi- 
cal changes in the whole form and structure of the Union were 
contemplated by different parties in the convention. From Mr. 
Luther Martin we learn that there were in fact " three parties 
among the delegates, of very different sentiments and views." 
There was, he says, " one party, whose object and wish it was to 
abolish and annihilate all State governments, and to bring forward 
one general government over all this extensive continent, of a 
monarchical nature, under certain restrictions and limitations. 
Those who openly avowed this sentiment were, it is true, but 
few ; yet it is equally true that there was a considerable number 
who did not openly avow it, who were by myself and many others 
of the convention considered as being in reality favorers of that 
sentiment and acting upon those principles, covertly endeavoring 
to carry into effect what they well knew openly and avowedly 
could not be accomplished. 



ADOPTION OF THE CONSTITUTION. 499 

" The second party was not for the abolition of State govern- 
ments, nor for the introduction of a monarchical government under 
any form ; but they wished to establish such a system as could 
give their own States undue power and influence in the government, 
over the other States. 

" A third party was what I considered truly federal and repub- 
lican. This party was nearly equal in numbers with the other two, 
and was composed of the delegations from Connecticut, New York, 
New Jersey, Delaware, and in part from Maryland ; also of some 
individuals from other representations. This party was for pro- 
ceeding upon terms of federal equality ; they were for taking our 
present federal system as the basis of their proceedings, and, as far 
as experience had shown us that there were defects, to remedy 
those defects ; as far as experience had shown that other powers 
were necessary to the Federal government, to give them those 
powers. They considered this the object for which they were sent 
by their States, and what their States expected from them. 

" But the favorers of monarchy, and those who wished the total 
abolition of State governments — well knowing that a government 
founded on truly federal principles, the bases of which were the 
thirteen State governments preserved in full force and energy, 
would be destructive of their views ; and knowing they were too weak 
in numbers openly to bring forward their system ; conscious, also, 
that the people of America would reject it if proposed to them — 
joined their interest with that party who wished a system giving par- 
ticular States the power and influence over the others, procuring, in 
return, mutual sacrifices from them in giving the government great 
and undefined powers as to its legislative and executive ; well know- 
ing that by departing from a federal system they paved the way for 
their favorite object, the destruction of the State governments and 
the introduction of monarchy. And hence, I apprehend, in a great 
measure arose the objections of those honorable members, Mr. 
Mason and Mr. Gerry. In everything which tended to give the 
large States power over the smaller, the first of those gentlemen 
could not forget he belonged to the Ancient Dominion ; nor could 
the latter forget that he represented old Massachusetts ; that part 
of the system which tended to give those States power over the 



500 ADOPTION OF THE CONSTITUTION". 

others met with their perfect approbation. But when they viewed 
it charged with such powers as would destroy all State governments, 
their own as well as the rest — when they saw a president so con- 
stituted as to differ from a monarch scarcely but in name, and 
having itJn his power to become such when he pleased — they 
being republicans and federalists as far as an attachment to their 
own States would permit them, warmly and zealously opposed those 
parts of the system." 

Such were the elements of which the Federal Convention was 
composed : — a party purely monarchical in its aims, an opposite 
party as purely republican, aiming at the freedom and equality not 
only of the individual citizens, but of the States in whose trust were 
placed all the rights of their respective citizens ; and a party 
which, while it did not favor monarchy, desired an inequality of 
States, which should give greater power and influence to the larger 
than to the smaller. 

As early as the 29th of May, Mr. Randolph laid before the con- 
vention a series of resolutions as to the best plan of amending the 
Constitution ; and his second resolution showed the purpose of the 
larger States to insist upon a greater influence than should be con- 
ceded to the smaller. Under the confederation every State voted 
as a unit, and consequently there was perfect equality of States in 
the national council. Mr. Randolph's second resolution declared 
that, instead of an equal vote by States, " the right of suffrage in the 
national legislature ought to be proportioned to the quotas of con- 
tribution or to the number of free inhabitants." In order to carry 
this principle into complete operation, he, after proposing in the 
third resolution that the national legislature should consist of two 
branches, a house of representatives and a senate, insisted in the 
fifth that the members of the senate should be elected by the 
house ; thus, in effect, giving to the larger States power to construct 
the senate as they chose, without consulting the wishes of the 
smaller. The only other important point in Mr. Randolph's 
resolutions was contained in the seventh, which proposed a limited 
term of office for an executive, who should be chosen by the 
national legislature. Had this resolution been adopted, the presi- 
dent, like the senate, would have been a mere appointee of the 



ADOPTION OF THE COXSTTTUTIOX. 501 

larger States, so that the executive and legislative powers would 
have beeu wholly under their control, and the smaller States 
would have been powerless in every case where the interests of the 
larger were alike. 

On the same day, Mr. Charles Pinckney submitted a " draft of a 
federal government, to be agreed upon between the free aDd inde- 
pendent States of America," which was subsequently made the 
basis of the Constitution. It was a masterly and statesmanlike 
document, such as could only have emanated from a man equally 
jealous of the independence of his State and earnestly desirous of 
the perpetuity, efficiency, and glory of the Union. It clearly dis- 
tinguished and limited the powers of the legislative, executive, and 
judicial branches of the government, and provided for a limited 
presidential term, but agreed with Mr. Randolph's resolutions in 
proposing that the senate should be elected by the house. 

On the 15th of June, what are known as the New Jersey reso- 
lutions were offered by Mr. Patterson of that State. They pro- 
posed a restriction of the action of the convention to the purposes 
contemplated by the Congress in calling for it, and suggested an 
increase in the powers of Congress, the creation of a federal execu- 
tixe, to consist of — persons, and the establishment of a supreme 
federal judiciary, to try certain specified causes. This plan was 
warmly supported by the smaller States. 

On the 18th of June, Colonel Hamilton presented a paper 
" containing his ideas of a suitable plan of government for the 
United States." This was the great effort of the favorers of a com- 
plete consolidation of the States. In the construction of the fede- 
ral legislature, it ignored the States, making the members of the 
senate, as well as those of the house, to be elected by the people 
in proportion to the population, without regard to States. The 
senators were to be elected for life. The president was to hold 
his office during good behavior, and was to be elected by electors 
chosen in the same way as the senators, according to population. 
The States were regarded as mere territorial provinces of the 
Union ; and, the better to keep them in subjection, the governor 
of every State was to be appointed by the president, and to have 
an absolute veto on all acts of the State legislature, over which he 



502 ADOPTION" OF THE CONSTITUTION. 

might preside. As if this were not sufficient, it was further pro- 
posed that " no State should have any forces, land or naval ; and 
that the militia of all the States should be under the sole and ex- 
clusive direction of the United States ; the officers of which (i. e., 
the State militias) should be appointed by them." 

Colonel Hamilton's " ideas of a suitable plan of government " 
found no favor with the convention, and were summarily dismissed. 
The New Jersey resolutions also were respectfully considered, but 
in the end rejected, the convention feeling that a more radical 
change in the constitution of the government was necessary than 
could be honestly made to appear in the form of amendments to 
the act of confederation. The debates, therefore, continued on the 
various articles of the first two plans by Mr. Randolph and Mr. 
Pinckney, until the 26th of July, when the following resolutions, 
as they had, from time to time, been adopted, were, together with 
the propositions of these two gentlemen, referred to a select com- 
mittee, with instructions to report a constitution. 

RESOLUTIONS OF THE CONVENTION, 

Referred on the Twenty-third and Twenty-sixth of July, 1787, to a 
committee of detail (Messrs. Rutledge, Randolph, Gorham, 
Ellsworth, and Wilson), for the purpose of reporting a Con- 
stitution. 

June " I. Resolved, That the Government of the United States 

1 ought to consist of a supreme legislative, judiciary, and exec~ 
utive. 

2 " II. Resolved, That the legislature consist of two 
branches. 

21 " III. Resolved, That the members of the first branch of 
the legislature ought to be elected by the people of the sev- 

22 eral States, for the term of two years ; to be paid out of the 

23 public treasury ; to receive an adequate compensation for 
their services ; to be of the age of twenty-five years at least ; 
to be ineligible to, and incapable of holding any office under 
the authority of the United States (except those peculiarly 
belonging to the functions of the first branch), during the 
term of service of the first branch. 



ADOPTION OF THE CONSTITUTION. 503 

June " IV. Resolved, That the members of the second branch 
25 of the legislature of the United States ought to be chosen by 
the individual legislatures ; to be of the age of thirty years 
at least ; to hold their offices for six years, one third to go 
out biennially ; to receive a compensation for the devotion of 
their time to the public service ; to be ineligible to, and in- 
capable of holding any office under the authority of the 
United States (except those peculiarly belonging to the func- 
tions of the second branch) during the term for which they 
are elected, and for one year thereafter. . 

" V. Resolved, That each branch ought to possess the 
right of originating acts. 
Postponed, 27. " VI. Resolved, That the national legislature 
July ought to possess the legislative rights vested in Congress by 

16 the confederation ; and, moreover, to legislate, in all cases, 

17 for the general interests of the Union ; and also in those to 
which the States are separately incompetent, or in which the 
harmony of the United States may be interrupted by the ex- 
ercise of individual legislation. 

" VII. Resolved, That the legislative acts of the United 
States, made by virtue and in pursuance of the articles of 
union, and all treaties made and ratified under the authority 
of the United States, shall be the supreme law of the respec- 
tive States, as far as those acts or treaties shall relate to the 
said States, or their citizens and inhabitants ; and that the 
judiciaries of the several States shall be bound thereby in 
their decisions, anything in the respective laws of the individ- 
ual States to the contrary notwithstanding. 
16 " VIII. Resolved, That in the original formation of the 

legislature of the United States, the first branch thereof 
shall consist of sixty-five members, of which number 



New Hampshire 


shall send 


3 


Delaware shall send 


1 


Massachusetts 


a 


" 


8 


Maryland " 


" 


6 


Ilhode Island 


11 


11 


1 


Virginia " 


" 


10 


Connecticut 


a 


It 


5 


North Carolina " 


(i 


5 


New York 


u 


(( 


6 


South Carolina " 


« 


5 


New Jersey 


u 


11 


4 


Georgia " 


u 


3 


Pennsylvania 


u 


i( 


8 









504 ADOPTION OF THE CONSTITUTION. 

July But as the present situation of the States may probably alter 
in the number of their inhabitants, the legislature of the 
United States shall be authorized, from time to time, to ap- 
portion the number of representatives ; and in case any of 
the States shall hereafter be divided, or enlarged by addition 
of territory, or any two or more States united, or any new 
States created within the limits of the United States, the 
legislature of the United States shall possess authority to 
regulate the number of representatives, in any of the fore- 
going cases, upon the principle of the number of their inhab- 
itants, according to the provisions hereafter mentioned, 
namely : Provided always, that representatives ought to be 
proportioned according to direct taxation. And in order to 
ascertain the alteration in the direct taxation which may be 
required, from time to time, by the changes in the relative 
circumstances of the States — 

" IX. Resolved, That a census be taken within six years 
from the first meeting of the legislature of the United States, 
and once within the term of every ten years afterwards, of all 
the inhabitants of the United States, in the manner and ac- 
cording to the ratio recommended by Congress, in their reso- 
lutions of x\pril 18, 1783 ; and that the legislature of the 
United States shall proportion the direct taxation accord- 
ingly. 

" X. Resolved, That all bills for raising or apportioning 
money, and for fixing the salaries of the officers of the Gov- 
ernment of the United States, shall originate in the first 
16 branch of the Legislature of the United States, and shall not 
be altered or amended by the second branch ; and that no 
money shall be drawn from the public treasury but in pursu- 
ance of appropriations to be originated by the first branch. 

" XI. Resolved, That, in the second branch of the legis- 
lature of the United States, each State shall have an equal 
vote. 
26 " XII. Resolved, That a national executive be instituted, 
to consist of a single person, to be chosen by the national 
legislature for the term of seven years ; to be ineligible a 



ADOPTION OF THE CONSTITUTION. 505 

July second time ; with power to carry into execution the national 
laws ; to appoint to offices in cases not otherwise provided 
for ; to be removable on impeachment and conviction of mal- 
practice or neglect of duty ; to receive a fixed compensation 
for the devotion of his time to public service, to be paid out 
of the public treasury. 

21 " XIII. Resolved, That the national executive shall have 

a right to negative any legislative act, which shall not be 
afterwards passed, unless by two third parts of each branch 
of the national legislature. 

18 M XIV. Resolved, That a national judiciary be established, 

21 to consist of one supreme tribunal, the judges of which shall 
be appointed by the second branch of the national legisla- 

18 ture ; to hold their offices during good behavior ; to receive 
punctually, at stated times, a fixed compensation for their ser- 
vices, in which no diminution shall be made, so as to affect 
the persons actually in office at the time of such diminution. 
" XV. Resolved. That the national legislature be empow- 
ered to appoint inferior tribunals. 

18 " XVI. Resolved, That the jurisdiction of the national 

judiciary shall extend to cases arising under laws passed by 
the general legislature, and to such other questions as involve 
the national peace and harmony. 

" XVII. Resolved, That provision ought to be made for 
the admission of new States lawfully arising within the limits 
of the United States, whether from a voluntary junction of 
government and territory, or otherwise, with the consent 
of a number of voices in the national legislature less than 
the whole. 

"XVIII. Resolved, That a republican form of govern- 
ment shall be guaranteed to each State ; and that each State 
shall be protected against foreign and domestic violence. 

23 " XIX. Resolved, That provision ought to be made for 

the amendment of the articles of union, whensoever it shall 
seem necessary. 

" XX. Resolved, That the legislative, executive, and ju- 
diciary powers, within the several States, and of the national 
22 



506 ADOPTION OF THE CONSTITUTION. 

July government, ought to be bound, by oath, to support the arti- 
cles of union. 

" XXI. Resolved, That the amendments which shall be 
offered to the confederation by the convention ought, at a 
proper time or times after the approbation of Congress, to be 
submitted by an assembly or assemblies of representatives, 
recommended by the several legislatures, to be expressly 
chosen by the people, to consider and decide thereon. 

" XXII. Resolved, That the representation in the second 
branch of the legislature of the United States co.isist of two 
members from each State, who shall vote per capita. 
26 " XXIII. Resolved That it be an instruction to the com- 

mittee, to whom were preferred the proceedings of the con- 
vention for the establishment of a national government, to 
receive a clause or clauses, requiring certain qualifications of 
property and citizenship, in the United States, for the execu- 
tive, the judiciary, and the members of both branches of the 
legislature of the United States. 

During the protracted debates which took place in the discussion 
of the foregoing resolutions, the most important were on the third 
and fourth. On the one hand, the larger States demanded that 
the members of both houses in the national legislature should be 
elected by the people according to population, so as to secure to 
them a preponderating influence in both, On the other hand, the 
smaller States, feeling that such a mode of representation would set 
them at the mercy of the larger, insisted on an equality of represen- 
tation in each house ; so that the States, large and small, might be 
equal in their voice and vote in the assembly of the Union. The ar- 
guments advanced on both sides are profoundly interesting, and we 
give the most important of them in the words of Mr. Luther Mar- 
tin, a distinguished member of the convention. The italics are his. 

" The advocates of unequal representation," he says, in his cele- 
brated letter, " urged that, when the Articles of Confederation were 
formed, it was only from necessity and expediency that the States were 
admitted each to have an egual vote; but that our situation was 
now altered, and therefore those States who considered it contrary to 



ADOPTION OF TIIE CONSTITUTION. 507 

their interest would no longer abide by it. They said no State 
ouo-ht to wish to have influence in government except in proportion 
to what it contributes to it ; that if it contributes but little, it 
ought to have but a small vote ; that taxation and representation 
ought always to go together ; that if one State had sixteen times as 
many inhabitants as another, or was sixteen times as wealthy, it ought 
to have sixteen times as many votes ; that an inhabitant of Pennsyl- 
vania ought to have as much weight and consequence as an inhab- 
itant of Jersey or Delaware ; that it was contrary to the feelings of 
the human mind — what large States would never submit to ; that 
the large States would have great objects in view, in which they would 
never permit the smaller States to thwart them ; that equality of 
suffrage was the rotten part of the Constitution, and that this was 
a happy time to get clear of it. In fine, it was the poison which 
contaminated our whole system, and the source of all the evils 
we experience. 

" This is the substance of the arguments — if arguments they may 
be called — which were used in favor of inequality of suffrage. Those 
who advocated the equality of suffrage took the matter up on the 
original principles of government. They urged that all men, con- 
sidered in a state of nature, before any government is formed, are 
equally free and independent, no one having any right or authority 
to exercise power over another, and this without any regard to differ- 
ence in personal strength, understanding, or wealth — that, when such in- 
dividuals enter into government they have each a right to an equal 
voice in its first formation, and afterwards have each a right to an 
equal vote in every matter which relates to their government : — 
that if it could be done conveniently they have a right to exercise 
it in person ; where it cannot be done in person, but, for conve- 
nience, representatives are appointed to act for them, every person 
has a right to an equal vote in choosing that representative who is 
intrusted to do, for the whole, thaftwhich the whole, if they could 
assemble, might do in person, and in the transacting of which each 
would have an equal voice : — that if we were to admit, because a 
man was more wise, more strong, or more wealthy, he should be en- 
titled to more votes than another, it would be inconsistent with 
the freedom and liberty of that other, and would reduce him to 
slavery. 



508 ADOPTION OP THE CONSTITUTION. 

" Suppose, for instance, ten individuals, in a state of nature, about 
to enter into government, nine of whom are equally wise, equally 
strong, and equally wealthy ; the tenth is ten times as wise, ten 
times as strong, or ten times as rich : if, for this reason, he is to 
have ten votes for each vote of either of the others, the nine might 
as well have no vote at all — since the whole nine might assent to a 
measure, yet the vote of the tenth would countervail and set aside 
ail their votes. If this tenth approved of what they wished to 
adopt, it would be well ; but if he disapproved, he could prevent it ; 
and in the same manner he could carry into execution any meas- 
ure he wished, contrary to the opinions of all the others, he having 
ten votes, and the others altogether but nine. It is evident that, 
on these principles, the nine would have no will nor discretion of 
their own, but must be totally dependent on the will and discretion 
of the tenth ; to him they would be as absolutely slaves as any negro 
is to his master. Hence it was urged, the inequality of representa- 
tion, or giving to one man more votes than another, on account of 
his wealth, &c, was altogether inconsistent with the principles of 
liberty; and in the same proportion as it should be adopted, in 
favor of one or more, in that proportion are the others enslaved. 
It was urged that although every individual should have an equal 
voice in the government, yet even the superior wealth, strength, or 
understanding, would give great and undue advantages to those who 
possessed them — that wealth attracts respect and attention ; supe- 
rior strength would cause the weaker and more feeble to be cautious 
how they offended, and to put up with small injuries rather than en- 
gage in an unequal contest. In like manner, superior understand- 
ing would give its possessor many opportunities of profiting at the 
expense of the more ignorant. 

" Having thus established these principles with respect to the 
rights of individuals in a state of nature, and what is due to each on 
entering into government — the principles established by every 
writer on liberty — they proceeded to show that states, when once 
formed, are considered, with respect to each other, as individuals in a 
state of nature; that, like individuals, each state is considered 
equally free and equally independent, the one having no right to exercise 
authority over the other, though more strong, more wealthy, or abound- 



ADOPTION OF THE CONSTITUTION. 509 

ing with more inhabitants — that, when a number of states unite them- 
selves under a federal government, the same principles apply to them 
as when a number of individual men unite themselves under a state 
government — that every argument which shows one man ought not 
to have more votes than another, because he is wiser, stronger, or 
wealthier, proves that one state ought not to have more votes than an- 
other, because it is stronger, richer, or more populous ; and that by 
giving one state or one or two states more votes than the others, the 
others thereby are enslaved to such state or states having the greater 
number of votes, in the same manner as in the case before put of indi- 
viduals, when one has more votes than the others — that the reason 
why each individual man, in forming a state government, should 
have an equal vote, is because each individual, before he enters into 
government, is equally free and independent ; so each state, when states 
enter into a federal government, are entitled to an equal vote, because, 
before they entered into such federal government, each state was 
equally free and equally independent — that adequate representation of 
men, formed into a state government, consists in each man having an 
equal voice ; either personally, or if by representatives, that he 
should have an equal voice in choosing the representatives — so 
adequate representation of states in a federal government consists in 
each state having an equal voice, either in person or by its represen- 
tative, in everything which relates to the federal government — that 
this adequacy of representation is more important in a federal than in 
a state government, because the members of a state government, the 
district of which is not very large, have generally such a common in- 
terest, that laws can scarcely be made by one part oppressive to the 
others without their suffering in common ; but the different states com- 
posing an extensive federal empire; widely distinct one from the 
other, may have interests so totally distinct, that the one part might 
be greatly benefited by what would be destructive to the other. 

" It was said that the maxim that taxation and representation 
ought to go together was true so far that no person ought to be 
taxed who is not represented ; but not in the extent insisted upon, to 
wit, that the quantum of taxation and representation ought to be the 
same ; on the contrary, the quantum of representation depends upon 
the quantum of freedom, and therefore all, whether individual 



510 ADOPTION OF THE CONSTITUTION*. 

states or individual men, who are equally free, have a right to equal 
representation — that to those who insist that he who pays the greatest 
share of taxes ought to have the greatest number of votes, it is a 
sufficient answer to say, that this rule would be destructive of the 
liberty of the others, and would render them slaves to the more rich and 
wealthy — that if one man pays more taxes than another, it is because 
he has more wealth to be protected by government, and he receives 
greater benefits from the government ; so, if one state pays more to 
the federal government, it is because, as a state, she enjoys greater 
blessings from it ; she has more wealth protected by it, or a greater 
number of inhabitants, whose rights are secured, and who share its 
advantages. 

" It was urged that, upon these principles, the Pennsylvanian, or 
inhabitant of a large state, was of as much consequence as the inhab- 
itant of Jersey, Delaware, Maryland, or any other State That his 
consequence was to be decided by his situation in his own state ; that, 
if he was there as free, if he had as great share in the forming of his 
own government, and in the making and executing its laws, as the 
inhabitants of those other states, then he was equally important and 
of equal consequence. Suppcse a confederation of states had never 
been adopted, but every state had remained absolutely in its inde- 
pendent situation, no person could, with propriety, say that the 
citizen of the large state was not as important as the citizen of the 
smaller. The confederation of states cannot alter the case. It was 
said that, in all transactions between state and state, the freedom, 
independence, importance, and consequence, even the individuality 
of each citizen of the different states, might, with propriety, be said 
to be swallowed up or concentrated in the independence, the free- 
dom, and the individuality of the state of which they are citizens ; 
that the thirteen states are thirteen distinct, political, individual exist- 
ences, as to each other; that this federal government is, or ought 
to be, a government over these thirteen political, individual ex- 
istences, which forms the members of that government ; and as the 
largest state is only a single individual of this government, it ought 
to have only one vote ; the smallest state, also being one individual 
member of this government, ought also to have one vote. To those 
who urged that the states having equal suffrage was contrary to 



ADOPTION OF THE CONSTITUTION. 511 

the feelings of the human heart, it was answered, that it was ad- 
mitted to be contrary to the feelings of pride and ambition; but 
those were feelings which ought not to be gratified at the expense of 
freedom. 

" It was urged that the position that great states would have great 
objects in view, in which they would suffer the less states to thwart 
them, was one of the strongest reasons why inequality of represen- 
tation ought not to be admitted. If those great objects were not 
inconsistent with the interest of the less states, they would readily 
concur in them ; but if they were inconsistent with the interest of 
a majority of the states composing the government, in that case 
two or three states ought not to have it in their power to aggrandize 
themselves at the expense of all the rest. To those who alleged 
that equality of suffrage, in our federal government, was the 
poisonous source from which all cur misfortunes flowed, it was an- 
swered that the allegation was not founded in fact — that equality 
of suffrage had never been complained of ly the states, as a defect in 
our federal system — that, among the eminent writers, foreigners 
and others, who had treated of the defects in our confederation, 
and proposed alterations, none had proposed an alteration in this 
part of the system; anl members of the convention, both in and 
out of Congress, who advocated the equality of suffrage, called upon 
their opponents, both in and out of Congress, and challenged them 
to produce one single instance where a bad measure had been 
adopted, or a good measure had failed of adoption, in consequence 
of the states having an equal vote. On the contrary, they urged 
that all our evils flowed from the want of power in the federal 
head, and that, let the right of suffrage in the states be altered in 
any manner whatever, if no greater power were given to the gov- 
ernment, the same inconveniences would continue. 

u It was denied that the equality of suffrage was originalhj 
agreed to on principles of necessity or expediency ; on the con- 
trary, that it was adopted on the principles of the rights of men, 
and the rights of states, which were then well known, and which 
then influenced our conduct, although they now seem to be for- 
gotten. For this the journals of Congress were appealed to. It 
was from them shown that when the committee of Congress re- 



512 ADOPTION OF THE CONSTITUTION. 

ported to that body the Articles of Confederation, the very first 
article which became subject of discussion was that respecting 
equality of suffrage — that Virginia proposed divers modes of suffrage, 
all on the principle of inequality, which were almost imanimoushj re- 
jected — that on the question of adopting the articles, it passed, 
Virginia being the only state which voted in the negative — that, 
after the Articles of Confederation were submitted to the states, 
by them to be ratified, almost every state proposed certain amend- 
ments, which they instructed tbeir delegates to endeavor to obtain 
before ratification ; and that, among all the amendments proposed, 
not one state, not even Virginia, proposed an amendment of that 
article securing the equality of suffrage ; the most convincing proof 
it was agreed to, and adopted, not from necessity, but upon a full 
conviction that, according to the principles of free government, the 
states had a right to that equality of suffrage. 

u But it was to no purpose that the futility of their objections was 
shown. When driven from the pretence that the equality of suf- 
frage had been originally agreed to on principles of expediency and 
necessity, the representatives of the large states persisted in a decla" 
ration, that they would never agree to admit the smaller states to an 
equality of suffrage. In answer to this, they were informed, and 
informed in terms the most strong and energetic that could possibly 
be used, that we never could agree to a system giving them the undue 
influence and superiority they proposed — that we would risk every 
possible consequence — that from anarchy and confusion order might 
arise — that slavery was the worst that could ensue, and we con- 
sidered the system proposed to be the most complete, most abject 
system of slavery that the wit of man ever devised, under the pre- 
tence of forming a government for free states — that we never would 
submit tamely and servilely to a present certain evil in dread of a 
future, which might be imaginary — -that we were sensible the eyes 
of our country and the world were upon us — that we would not 
labor under the imputation of being unwilling to form a strong and 
energetic federal government; but we would publish the system 
which we approved, and also that which we opposed, and leave it to 
our country and the world at large to judge, between us, who best 
understood the rights of freemen and free states, and who best ad- 



ADOPTION OF THE CONSTITUTION. 513 

vocated theui ; and to the same tribunal we would submit, who 
ought to be answerable for all the consequences which might arise 
to the Union, from the convention breaking up without proposing 
any system to their constituents. During this debate we were 
threatened that, if we did not agree to the system proposed, we 
never should have an opportunity of meeting in convention to de- 
liberate on another ; and this was frequently urged In answer, 
we called upon them to show what was to prevent it, and from what 
quarter was our danger to proceed. Was it from a foreign enemy ? 
Our distance from Europe, and the political situation of that country 
left us but little to fear. Was there any amibitious state or states, 
who, in violation of every sacred obligation, was preparing to enslave 
the other states, and raise itself to consequence on the ruin of the 
others ? Or was there any such ambitious individual ? We did not 
apprehend it to be the case. But suppose it to be true • it rendered 
it the more necessary that we should sacredly guard against a system 
which might enable all those ambitious views to be carried into 
effect, even under the sanction of the Constitution and government. In 
fine, all these threats were treated with contempt, and they were 
told that we apprehended but one reason to prevent the states 
meeting again in convention ; that, when they discovered the part 
this convention had acted, and how much its members were abus- 
ing the trust reposed in them, the states would never trust another 
convention." 

To this degree of warmth — almost of anger — did the debate on 
this important subject proceed, and on the vote being taken it was 
found to be equally divided, five States voting for an inequality of 
representation, and five against it. A conference committee was ac- 
cordingly appointed from the different parties to endeavor to come 
to an agreement ; and the result was that the opponents of an un- 
equal representation agreed to yield their objections to it in the lower 
house — in reference to which the debate had taken place — provided 
its advocates would pledge themselves to support an equal repre- 
sentation in the senate. Thus, by an equitable compromise, the 
framers of the Constitution came to a determination on this cardi- 
nal question, in regard to which 'their radical differences of opinion 
threatened to destroy the Union, and to turn the convention into a 
22* 



514 ADOPTION OF THE CONSTITUTION. 

direct means for the overthrow of the confederation they had been 
commissioned to amend. 

The committee to which the twenty-three resolutions were com- 
mitted on the 26th of July, reported their draft of a Constitution 
on the 7th of August. In its phraseology we discover one singular 
difference between it and the resolutions. In the latter we find the 
word national repeatedly used in connection with the United States. 
The legislature of the United States is called the national legisla- 
ture, their executive a national executive, and their judiciary a na- 
tional judiciary. In the draft of the committee this expression no- 
where appears. It had been adopted, and its use strongly urged 
by the monarchical party, and those who favored the obliteration of 
States and the erection of a consolidated government, on which ac- 
count it was opposed by the wiser men who did not desire to over- 
throw but to confirm the federal character of the bond between 
the States. In the debate upon the fourth resolution, which, in its 
original form, spoke of " the national legislature," it was moved to 
erase the word " national," and to substitute the words " of the Unit- 
ed States," and the motion was carried in the affirmative. The same 
word, however, reappears in later resolutions, but from the time of 
their commitment it never afterwards occurs. The truth is, this 
word, from the characters and aims of those who sought to introduce 
it, was invested with a sinister significance. No one had denied 
that the confederation was a national confederation. " No one now 
denied that the United States would form -a national union under the 
new Constitution. But the use of this term by the monarchists and 
consolidationists, in order to impart the notion of such nationality 
to the Union, as is understood to exist in consolidated monarchies, 
was bitterly opposed by men who understood and intended it to be 
a simple bond between sovereign and independent States, delegating 
to a common agency only certain specified and well-defined func- 
tions of their independent sovereignties. Hence, though even in 
the committee some may have desired that it should be retained, it 
was felt that the mere use of this word in the Constitution would 
suffice to cause its absolute rejection by the States, and it was 
dropped accordingly. 

The draft presented by the committee was submitted to a rigor- 



ADOPTION OF THE CONSTITUTION. 515 

ous examination and discussion from the 7th of August till the 8th 
of September, when, "with the various changes and amendments 
made to it in convention, it was again committed to a committee of 
revision, who were charged to revise its style, and arrange the arti- 
cles agreed to by the house. 

On the 12th of September the committee of revision delivered 
their report at the secretary's table ; and if we compare it with the 
draft from which it was prepared, we find at once a very striking 
change in the preamble. In the first draft the preamble was as 
follows : — 

" We, the people of the States of New Hampshire, Massachu- 
setts, Rhode Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia, do ordain, declare, 
and establish the following Constitution, for the government of our- 
selves and our posterity." 

In the convention this preamble had been adopted without 
amendment. In the revised draft the enumeration of the States is 
entirely omitted; and the preamble, which is that of the Constitu- 
tion as finally adopted, reads thus : 

" We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, provide 
for the common defence, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain and 
establish this Constitution for the United States of xlmerica," 

From the omission of the names of the several States in the 
Constitution as adopted, and the substitution of the phrase, " We, 
the people of the United States," some, who have not yet abandoned 
the hope of converting the union of sovereign States established by 
our fathers into the consolidated empire they deliberately refused 
to make, have argued that, by the adoption of the latter phraseol- 
ogy, " the people of the United States," are represented as one cor- 
poration ; that is to say, that the Constitution declares the Union 
to be a corporation of the individual citizens of all the States, and 
not a corporation of States. Nothing could be more absurd than 
such a train of reasoning. It might as well be asserted that the 
Constitution was not intended to create a government, nor to be of 



516 ADOPTION OF THE CONSTITUTION. 

authority beyond the lives of its framers, because the clause or- 
daining, declaring, and establishing " the following Constitution for 
the government of ourselves and our posterity," which appears in 
the draft, does not appear in the revised draft nor in the Constitu- 
tion. This latter inference will certainly not be admitted by the 
modern admirers of consolidated monarchies. The true reason of 
the change of phraseology in the preamble is very simple, though 
not a little curious, if we consider the events of the past three 
years. 

The thirteen States were still members of the Union as consti- 
tuted by the " Articles of Confederation and Perpetual Union," 
which had been adopted by the free vote of each of the thirteen 
States ; and the thirteenth article provided that — 

" Art. XIII. Every State shall abide by the determination of 
the United States in Congress assembled, on all questions which by 
this confederation are submitted to them. And the articles of this 
confederation shall be inviolably observed by every State, and the 
Union shall be perpetual ; nor shall any alteration, at any time here- 
after, be made in any of them, unless such alteration be agreed to in a 
Congress of the United States, and be afterwards confirmed by the legis- 
lature of every State" 

It was under this thirteenth article that Congress had requested 
the States to send delegates to the convention, '■'•for the sole and ex- 
press purpose of revising the Articles of Confederation, and reporting 
to Congress and the several legislatures such alterations and pro- 
visions therein as shall, when agreed to in Congress and confirmed by 
the States — i. e., all the States — render the Federal Constitution 
adequate to the exigencies of government and the preservation of 
the Union." But instead of carrying out the original designs of 
Congress, the convention, when it assembled, utterly refused to 
revise or report alterations in the Articles of Confederation. Mr. 
Patterson's resolutions declaring that this should be the limit of 
their action, were respectfully considered and then summarily dis- 
missed. They had determined on a new Constitution such as could 
not honestly be called a mere amendment of the old; and foresee- 
ing, from the differences of opinion which had appeared in the con- 
vention, that the speedy accession of all the States was not to be 



ADOPTION OF THE CONSTITUTION. 517 

anticipated, they had resolved, in the seventh article of the Consti- 
tution, that — 

" Art. VII. The ratification of the conventions of nine 
States shall be sufficient for the establishment of this Constitution 
between the States so ratifying the same." 

Now the Articles of Confederation under which the United 
States were at that time bound together, declared their union under 
its existing conditions to be perpetual, and that no alteration of it 
should ever be made without the consent of every one of the thir- 
teen States. Clearly, then, the adoption of the new Constitution 
by nine States would be a distinct repudiation of the bond of the 
confederation, and a secession from the Union constituted under it. 
As yet the novel notion of coercing States either to remain in a 
" perpetual Union," or to enter into a confederation which they dis- 
approved, had not been discovered. It was doubtful what States 
might determine to secede from the confederation ; but the seces- 
sionists had as little thought of compelling the confederates to fol- 
low them in their secession, as the latter had of forcing the former 
to remain. It would, however, have beeu a manifest absurdity in 
the nine seceding States to claim the confederate States as under 
their jurisdiction by inserting their names in the preamble of a 
Constitution which was binding only on themselves ; and this was 
the only reason for the suppression of the names of the contracting 
States in the preamble of the Constitution. It was still uncertain 
what States would adopt it. It was hoped that all might ulti- 
mately ratify it. But because they could not know which might be 
the first nine States of the new Union, and claimed no authority over 
the non-complying States, they agreed to use the corporate style of 
" the United States " in the preamble, that it might include those 
only who adhered to it. 

The revised draft was submitted to a searching examination 
until Saturday, the 15th of September, when, on the question being 
put to agree to the Constitution as amended, it was passed in the 
affirmative — all the States concurring ; and the Constitution, 
now at length harmoniously adopted in convention, was engrossed, 
and transmitted to Congress, which body having approved the 
same, it was by unanimous resolution, on the 28th of September, 



518 ADOPTION OF THE CONSTITUTION. 

1787, sent for final approval to the legislatures of the several 
States. By these it was successively ratified from the 7th of De- 
cember, 1787, when it was ratified by Delaware, to the 29th of 
May, 1790, when it was ratified by Rhode Island. 

On the 2d of July, 1788, the ratification of New Hampshire 
having been received in the confederate Congress, and this being 
the ninth ratification received, Congress immediately passed an act 
for putting the new Constitution in operation. The first Wednes- 
day in January, 1789, was appointed for the election by the States 
of presidential electors ; the first Wednesday in February for the 
vote of the electors for President ; and the first Wednesday in 
March for commencing proceedings under the new Constitution. 
Accordingly the elections of the States were held; on Wednesday, 
the 4th of March, 1789, proceedings commenced under the Consti- 
tution ; and on the 30th of April of the same year, George Wash- 
ington, unanimously elected by the suffrage of the electors, was 
inaugurated as President of the United States. 

The Constitution, however, was as yet far from perfect. It 
conveyed to the United States no power of injuring the rights and 
liberties either of citizens or of the States. On the other hand, it 
did not definitely restrain the Federal authority from acts which 
might be ruinous to both. This defect of indefiniteness was keenly 
felt by the States ; and in their ratifications of the Constitution, 
many of them made formal declarations of the understanding with 
which they approved it, and at the same time called for amendments 
to it which should more clearly guarantee the rights of States and 
citizens. Of these declarations and proposals of amendment the 
most important were the following : 

Massachusetts. " That it be explicitly declared that all 
powers not expressly delegated by the aforesaid Constitution, are 
reserved to the several States, to be by them exercised." 

New Hampshire. " That it be explicitly declared that all 
powers not expressly and particularly delegated by the aforesaid 
Constitution, are reserved to the several States, to be by them ex- 
ercised. 

" Congress shall never disarm any citizen, unless such as are or 
have been in actual rebellion. 



ADOPTION OF THE CONSTITUTION. 519 

u That no person shall be tried for any crime by which he may 
incur an infamous punishment, or loss of life, until he first be in- 
dicted by a grand jury, except in such cases as may arise in the 
government and regulation of the land and naval forces. 

11 In civil actions between the citizens of different States, every 
issue of fact, arising in actions at common law, shall be tried by 
jury, if the parties, or either of them, shall request it. 

" Congress shall make no laws touching religion, or to infringe 
the rights of conscience." 

South Carolina. u This convention doth also declare, that no 
section or paragraph of the said Constitution warrants a construc- 
tion that the States do not retain every power not expressly relin- 
quished by them, and vested in the .G-eneral Government of the 
Union." 

Virginia. " TVe, the delegates of the people of Virginia, &c, 
do, in the name and in behalf of the people of Virginia, declare and 
make known, that the powers granted under the Constitution, being 
derived from the people of the United States, may be resumed by 
them, whensoever the same shall be perverted to their injury or op- 
pression, aud that every power not granted thereby remains with them, 
and at their will ; that, therefore, no right, of any denomination, can 
be cancelled, abridged, restrained, or modified, by the Congress, by 
the Senate, or House of Representatives, acting in any capacity, by 
the President, or any department or officer of the United States, 
except in those instances in which power is given by the Constitu- 
tion for those purposes ; and that, among other essential rights, the 
liberty of conscience, and of the press, cannot be cancelled, abridged, 
restrained, or modified, by any authority of the United States." 

New York. " That the powers of government may be reas- 
sumed by the people whensoever it shall become necessary to their 
happiness ; that every power, jurisdiction, and right, which is not by 
the said Constitution clearly delegated to the Congress of the United 
States, or the departments of the Government thereof, remains to 
the people of the several States, or to their respective State Gov- 
ernments, to whom they may have granted the same ; and that 
those clauses in the said Constitution, which declare that Congress 
shall not have or exercise certain powers, do not imply that Congress 



520 ADOPTION OF THE CONSTITUTION-. 

is entitled to any powers not given by the said Constitution ; but 
such clauses are to be construed either as exceptions to certain 
specified powers, or as inserted merely for greater caution. 

Ci That the people have an equal, natural, and inalienable right 
freely and peaceably to exercise their religion, according to their dic- 
tates of conscience ; and that no religious sect or society ought to 
be favored or established by law in preference to others. 

" That the people have a right to keep and bear arms ; that a 
well-regulated militia, including the body of the people capable of 
bearing arms, is the proper, natural, and safe defence of a free 
State. 

" That standing armies, in times of peace, are dangerous to lib- 
erty, and ought not to be kept up except in cases of necessity ; and 
that, at all times, the military should be under strict subordination 
to the civil power. 

" That in time of peace no soldier ought to be quartered in any 
house without the consent of the owner ; and in time of war only by 
the civil magistrate, in such manner as the laws may direct. 

" That no person ought to be taken, imprisoned, or disseized of 
his freehold, or be exiled, or be deprived of his privileges, fran- 
chises, life, liberty, or property, but by due process of law. 

" That no person ought to be put twice in jeopardy of life or 
limb for one and the same offence ; nor, unless in case of impeach- 
ment, be punished more than once for the same offence. 

" That excessive bail ought not to be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

" That (except in the government of the land and naval forces, 
and of the militia when in actual service, and in cases of impeach- 
ment) a presentment or indictment by a grand jury ought to be ob- 
served as a necessary preliminary to the trial of all crimes cogniza- 
ble by the judiciary of the United States ; and such trial should be 
speedy, public, and by an impartial jury of the county where the 
crime was committed ; and that no person can be found guilty but 
by the unanimous consent of such jury ; . . . and that in all crim- 
inal prosecutions the accused ought to be informed of the cause and 
nature of his accusation, to be confronted with his accusers and the 
witnesses against him, to have the means of producing his witnesses, 



ADOPTION OF THE CONSTITUTION. 521 

and the assistance of counsel for his defence ; and should not be 
compelled to give evidence against himself. 

" That the trial by jury, in the extent it obtained by the com. 
mon law of England, is one of the greatest securities to the rights 
of a free people, and ought to remain inviolate. 

" That every freeman has a right to be secure from all unrea- 
sonable searches and seizures of his person, his papers, or his prop- 
erty ; and therefore, that all warrants to search suspected places, 
or seize any freeman, his papers, or property, without information, 
upon oath or affirmation, of sufficient cause, are grievous and oppres- 
sive; and that all general warrants (or such in which the place or 
person suspected are not particularly designated) are dangerous, 
and ought not to be granted. 

" That the people have a right peaceably to assemble together to 
consult for their common good, or to instruct their representatives, 
and that every person has a right to petition or apply to the legis- 
lature for redress of grievances. 

" That the freedom of the press ought not to be violated or res- 
trained." 

Rhode Island. " That those clauses in the Constitution which 
declare that Congress shall not have or exercise certain powers, do 
not imply that Congress is entitled to any powers not given by the 
said Constitution ; but such clauses are to be construed as excep- 
tions to certain specified powers, or as inserted merely for greater 
caution. 

" That religion, or the duty which we owe to our Creator, and the 
manner of discharging it, can be directed only by reason and con- 
viction, and not by force and violence ; and therefore all men have 
a natural, equal, and inalienable right to the exercise of religion 
according to the dictates of conscience ; and that no particular 
religious sect or society ought to be favored or established by law in 
preference to others. 

" That all power of suspending laws, or the execution of laws, by 
any authority without the consent of the representatives of the people 
in the legislature, is injurious to their rights, and ought not to be 
exercised. 

" That, in all capital and criminal prosecutions, a man hath ih& 



522 ADOPTION OF THE CONSTITUTION. 

right to demand the cause and nature of his accusation, to be con- 
fronted with the accusers and witnesses, to call for evidence, and be 
allowed counsel in his favor, and to a fair and speedy trial by an 
impartial jury in his vicinage, without whose unanimous consent he 
cannot be found guilty (except in the government of the land and 
naval forces), nor can he be compelled to give evidence against 
himself. 

" That no freeman ought to betaken, imprisoned, or disseized of 
his freehold, liberties, privileges, or franchises, or outlawed, or 
exiled, or in any manner destroyed or deprived of his life, liberty, 
or property, but by the trial by jury, or by the law of the land. 

" That every freeman restrained of Lis liberty is entitled to a 
remedy, to inquire into the lawfulness thereof, and to remove the 
same if unlawful, and that such remedy ought not to be denied or 
delayed. 

" That in controversies respecting property, and in suits between 
man and man, the ancient trial by jury, as hath been exercised by 
us and our ancestors from the time whereof the memory of man 
runneth not to the contrary, is one of the greatest securities to the 
rights of the people, and ought to remain sacred and inviolable. 

" That every freeman ought to obtain right and justice, freely and 
without sale, completely and without denial, promptly and without 
delay ; and that all establishments or regulations contravening these 
rights, are oppressive and unjust. 

11 That exessive bail ought not to be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

" That every person has a right to be secure from all unreasonable 
searches and seizures of his person, his papers, or his property ; and 
therefore, that all warrants to search suspected places, to seize any 
person, his papers, or his property, without information upon oath 
Or aflirmation of sufficient cause, are grievous and oppressive ; and 
that all general warrants (or such in which the place or person 
suspected are not particularly designated) are dangerous, and 
ought not to be granted. 

" That the people have a right to freedom of speech, and of writ- 
ing and publishing their sentiments. That freedom of the press 



ADOPTION OF THE CONSTITUTION. 523 

is one of the greatest bulwarks of liberty, and ought not to be vio- 
lated. 

" That the people have a right to keep and bear arms ; and that 
at all times, the military should be under strict subordination to 
the civil power." 

The consequence of these earnest and firm representations of the 
States was that at the first session of the first Congress under 
the Constitution the following resolution was adopted : 
" Congress of the United States ; 

" Begun and held at the City of New York, on Wednesday, the 
4th of March, 1789. 

" The conventions of a number of the States having, at the time 
of their adopting of the Constitution, expressed a desire, in order to 
prevent misconstruction or abuse of its powers, that further declar- 
atory and restrictive clauses should be added ; and as extending the 
ground of public confidence in the government will best insure the 
beneficent ends of its institution ; — 

" Resolved, by the Senate and House of Representatives of the 
United States of America, in Congress assembled, two thirds of 
both houses concurring, that the following Articles be proposed to 
the Legislatures of the several States, as amendments to the Consti- 
tution of the United States, all or any of which articles, when 
ratified by three fourths of the legislatures, to be valid, to all intents 
and purposes, as part of the said Constitution, namely, — 

" Articles in Addition to, and Amendment of the Constitution 
of the United States of America, proposed by Congress, and ratified 
by the Legislatures of the several States, pursuant to the Fifth 
Article of the original Constitution." 

Here follow twelve articles, of which all but the first two will 
be found among the amendments appended to the Constitution at 
the end of this chapter, where they are numbered from I. to X. inclu- 
ded. The first two articles, which were not ratified by the legis- 
latures of the States, were intended to restrict the number of mem- 
bers of the House of Representatives, and to prevent the compensa- 
tion of members from being varied during the term of the members 
who might alter it. The importance of the amendments adopted is 



524 ADOPTION OF THE CONSTITIJTIOS*. 

beyond expression. Overridden and despised as they have been by 
the present Adminstration, they stand still upon the record, an im- 
perishable monument of the wisdom of the framers of the Constitu- 
tion, and the perjury of those who, having sworn to support, 
maintain, and defend them, have presumed to trample their inestima- 
ble articles under the foot of factious tyranny. The Constitution, 
as originally made, formed a framework of free government. The 
amendments to it aimed to hinder its perversion to the purposes of 
arbitrary power. It is to the amendments we must look for our 
guarantee of the enjoyment of religious liberty; freedom of speech 
and of the press ; the right of peaceable assembly, of petitioning 
the Government for the redress of grievances, of keeping and bear- 
ing arms ; immunity from the quartering of soldiers in private houses 
in time of peace ; the right of freedom from unreasonable searches 
and seizures, under any warrant issued otherwise than upon probable 
cause, supported by oath or affirmation, and particularly describing 
the place to be searched, and the persons or things to be seized ; the 
right, before imprisonment or trial for crime, of open indictment by 
a grand jury, and of trial once only for the same offence, by due 
process of law ; the right, in all criminal prosecutions, of trial by 
jury in the State and district where the crime may have been com- 
mitted, with all the safeguards to innocence afforded by the common 
law ; the right of jury trial in all civil suits where the value in 
controversy is more than twenty dollars, and to claim the inesti- 
mable privileges of the common law in every court of the United 
States ; the right to the accused of freedom from excessive bail, and 
even to the convict of immunity from excessive fines and cruel or 
unusual punishments. These blessed provisions of the amendments 
to the Constitution are beyond price to the private citizen. The 
States are under no less obligation to them. For the ninth and 
tenth amendments look to their security, providing that the enumera- 
tion in the Constitution of certain rights shall not be construed to 
deny or to disparage others retained by the people ; and that the 
powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively 
or to the people. 

At the first session of the third Congress, assembled in 1793, 



ADOPTION OF THE CONSTITUTION. 525 

what stands as the eleventh amendment of the Constitution was 
proposed by Congress, but from various delays on the part of the 
State legislatures, it was not ratified until the end of the year 1797. 

At the first session of the eighth Congress, in 1803, the twelfth 
amendment was proposed, and became part of the Constitution in 
1804. 

We mus.t here conclude our hasty and imperfect outline of the 
history of free government in England and of its establishment in 
the United States. We have traced the long and doubtful battle 
of the manly spirit of the Saxon race against a haughty subjugating 
power. We have seen it groaning under the yoke of feudal des- 
potism. We have seen the Norman masters joining with their 
Saxon subjects in resisting the abominable tyrannies of regal power. 
We have traced the rise of a free representative asssmbly of the 
commons as an equal, in the English Parliament, with the House 
of Peers, and even with the crown. We have contrasted the oppo- 
site and hostile institutions of trial by jury and the king's court of 
Star Chamber. We have seen the folly of an idle and unwise 
attempt at summary and forced emancipation, in the natural extinc- 
tion of Saxon slavery in England. We have witnessed the tremen- 
dous struggle of prerogative with freedom in the Stuart reigns, 
and the complete and permanent establishment of English liberty 
by the revolution which dethroned that most unhappy race. In all 
this survey of the steps by which the English. Constitution has been 
brought into its present noble form, we have set up conspicuously 
the landmarks of our English forefather? Magna Charta, the 
Petition of Right, the Bill of Rights, and Act of Settlement — those 
glorious monuments of the determined progress of a generous race, 
which are our boast no less than the glory of our brethren on the 
other side of the Atlantic — we have set up as beacon lights to point 
the way of safety or destruction. We have shown the earnestness 
with which their guarantees were claimed by our colonial ancestors 
in their controversy with the mother country, and that the denial 
of them by the Parliament was the sole cause of the American 
Revolution. We have traced the progress of the Union from the 
first assembling of colonial delegates in Philadelphia to the final 
ratification of the Constitution by the legislatures of thirteen 



526 ADOPTION OF THE CONSTITUTION. 

sovereign and independent States. And here the first part of our 
task ends. The discussion of the principles inherent in free govern- 
ment in general, as well as the particular provisions of our own 
incomparable system, we reserve to the next portion of our work. 
We give no theory of the Constitution. On that subject let our 
fathers speak, while we in reverence listen to their words of wisdom, 
some of which we shall present hereafter. It affords no happy 
augury of the impending future of our country that so many and 
conflicting theories of the intention of the Constitution have been 
published by so many men, both wise and unwise. 

It is impossible to close this outline of the features of the past 
without a dark foreboding of the coming future. We started with 
the wisdom of a thousand years to guide us. In three quarters of 
a century we have outlived our own free institutions. In three 
years we have perhaps destroyed them. It requires a stout heart 
to. pursue the theme. What will be the future of America, or how 
the pen of the historian will trace the swiftly coming destinies of 
us and our posterity, what human wisdom can foretell ? No other 
people Qver yet surrendered liberty to power and afterwards regain- 
ed it, without suffering a fearful retribution, to be expiated only by 
unmeasured torrents of its noblest blood. It is hoping much to 
dream that we alone of all the world can pass unscathed though the 
appalling circumstances that surround us. Perhaps before these 
lines shall issue from the press, the muse of history may have record- 
ed the destruction of the liberties of a free people by its own 
hand. 



CoiBttttttiott 



UNITED STATES OE AMERICA. 

We the People of the United States, in order to form a more per- 
fect Union, establish Justice, insure domestic Tranquillity, provide 
for the common defence, promote the general Welfare, and secure 
the Blessings of Liberty to ourselves and our Posterity, do or- 
dain and establish this Constitution for the United States of 
America. 

ARTICLE. I. 
Section. 1. All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall consist of a 
Senate and House of Representatives. 

Section. 2. J The House of Representatives shall be composed 
of Members chosen every second Year by the People of the several 
States, and the Electors in each State shall have the Qualifications 
requisite for Electors of the most numerous Branch of the State 
Legislature. 

2 No Person shall be a Representative who shall not have attained 
to the Age of twenty five Years, and been seven Years a Citizen of 
the United States, and who shall not, when elected, be an Inhabit- 
ant of that State in which he shall be chosen. 

^Representatives and direct Taxes shall be apportioned among 
the several States which may be included within this Union, accord- 
ing to their respective numbers, which shall be determined by adding 
to the whole Number of free Persons, including those bound to 
Service for a Term of Years, and excluding Indians not taxed, three 
fifths of all other Persons. The actual Enumeration shall be made 



528 CONSTITUTION OF THE UNITED STATES, 

within three Years after the first Meeting of the Congress of the 
United States, and within every subsequent Term of ten Years, in 
such Manner as they shall by Law direct. The Number of Repre- 
sentatives shall not exceed one for every thirty Thousand, but each 
State shall have at Least one Representative ; and until such 
enumeration shall be made, the State of New Hampshire shall be 
entitled to chuse three, Massachusetts eight, R,hode Island and 
Providence Plantations one, Connecticut five, New-York six, ISTew 
Jersey four, Pennsylvania eight, Delaware one, Maryland six, "Vir- 
ginia ten, North Carolina five, South Carolina five, and Georgia 
three. 

4 When vacancies happen in the Representation from any state, 
the Executive Authority thereof shall issue Writs of Election to fill 
such Vacancies. 

5 The House of Representatives shall chuse their Speaker and 
other Officers ; and shall have the sole Power of Impeachment. 

Section. 3. ] The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature thereof, 
for six Years; and each Senator shall have one Vote. 

immediately after they shall be assembled in Consequence of 
the first Election, they shall be divided as equally as may be into 
three Classes. The Seats of the Senators of the first Class shall be 
vacated at the Expiration of the second Year, of the second Class 
at the Expiration of the fourth Year, and of the third Class at the 
Expiration of the sixth Year, so that one-third may be chosen every 
second Year ; and if Vacancies happen by Resignation, or otherwise, 
during the Recess of the Legislature of any State, the Executive 
thereof may make temporary Appointments until the next Meeting 
of the Legislature, which shall then fill such Vacancies. 

3 No Person shall be a Senator who shall not have attained to 
the Age of thirty Years, and been nine Years a Citizen of the United 
States, and who shall not, when elected, be an Inhabitant of that 
State for which he shall be chosen. 

4 The Vice President of the United States shall be President of 
the Senate, but shall have no Vote, unless they be equally divided. 
5 The Senate shall chuse their other Officers, and also a Presi- 
dent pro tempore, in the Absence of the Vice President, or when 
he shall exercise the Office of President of the United States. 



CONSTITUTION OF THE UNITED STATES. 529 

6 The Senate shall have the sole Power to try all Impeachments, 
When sitting for that Purpose, they shall be on Oath or Affirma- 
tion. When the President of the United States is tried, the Chief 
Justice shall preside. And no Person shall be convicted without 
the Concurrence of two thirds of the Members present. 

7 Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and Disqualification to hold and enjoy 
any Office of honour, Trust or Profit under the United States : but 
the Party convicted shall nevertheless be liable and subject to In- 
dictment, Trial, Judgment and Punishment, according to Law. 

Section. 4. 'The Times, Places and Manner of holding Elec- 
tions for Senators and Representatives, shall be prescribed in each 
State by the Legislature thereof; but the Congress may at any 
time by Law make or alter such Regulations, except as to the places 
of chusing Senators. 

-The Congress shall assemble at least once in every Year, and 
such Meeting shall be on the first Monday in December, unless 
they shall by Law appoint a different Day. 

Section. 5. 'Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a Majority of 
each shall constitute a Quorum to do Business ; but a smaller Num- 
ber may adjourn from day to day, and may be authorized to com- 
pel the Attendance of absent Members, in such Manner, and under 
such Penalties as each House may provide. 

2 Each House may determine the Rules of its Proceedings, punish 
its Members for disorderly Behaviour, and, with the Concurrence of 
two thirds, expel a Member. 

3 Each House shall keep a Journal of its Proceedings, and from 
time to time publish the same, excepting such Parts as niay in their 
Judgment require Secrecy ; and the Yeas and Nays of the Mem- 
bers of either House on any question shall, at the Desire of one fifth 
of those Present, be entered on the Journal. 

4 Xeither House, during the Session of Congress, shall, without 
the Consent of the other, adjourn for more than three days, nor to 
any other Place than that in which the two Houses shall be sitting. 

Section. 6. 'The Senators and Representatives shall receive a 
Compensation for their Services, to be ascertained by Law, and 
23 



530 CONSTITUTION OF THE UNITED STATES. 

paid out of the Treasury of the United States. They shall in all 
Cases, except Treason, Felony and Breach of the Peace, be privi- 
leged from Arrest during their Attendance at the Session of their 
respective Houses, and in going to and returning from the same ; 
and for any Speech or Debate in either House, they shall not be 
questioned in any other Place. 

2 No Senator or Representative shall, during the Time for which 
he was elected, be appointed to any civil Office under the Authority 
of the United States, which shall have been created, or the Emolu- 
ments whereof shall have been encreased during such time ; and no 
Person holding any Office under the United States, shall be a Mem- 
ber of either House during his Continuance in office. 

Section. 7. * All Bills for raising Revenue shall originate in the 
House of Representatives ; but the Senate may propose or concur 
with Amendments as on other Bills. 

2 Every Bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it become a Law, be presented to 
the President of the United States ; If he approve he shall sign it. 
but if not he shall return it, with his Objections to that House in 
which it shall have originated, who shall enter the Objections at 
large on their Journal, and proceed to reconsider it. If after such 
Reconsideration two thirds of that House shall agree to pass the 
Bill, it shall be sent, together with the Objections, to the other 
House, by which it shall likewise be reconsidered^ and if approved 
by two thirds of that House, it shall become a Law. But in all 
such Cases the Votes of both Houses shall be determined by yeas 
and Nays, and the Names of the Persons voting for and against the 
Bill shall be entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President within ten Days 
(Sundays excepted) after it shall have been presented to him, the 
Same shall be a law, in like Manner as if he had signed it, unless 
the Congress by their Adjournment prevent its Return, in which 
Case it shall not be a Law. 

3 Every Order, Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of Adjournment) shall be presented to the 
President of the United States ; and before the Same shall take 



CONSTITUTION OF THE UNITED STATES. 531 

Effect, shall be approved by him, or being disapproved by him, 
shall be repassed by two thirds of the Senate and House of Repre- 
sentatives, according to the Rules and Limitations prescribed in 
the Case of a Bill. 

Section. 8. The Congress shall have Power 
J To lay and collect Taxes, Duties, Imposts and Excises, to pay 
the Debts and provide for the common Defence and general Wel- 
fare of the United States; but all Duties, Imposts and Excises shall 
be uniform throughout the United States; 

2 To borrow Money on the credit of the United States ; 
3 To regulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes; 

4 To establish an uniform Rule of Naturalization, and uniform 
Laws on the subject of Bankruptcies throughout the United States; 
5 To coin Money, regulate the Value thereof, and of foreign Coin, 
and fix the Standard of Weights and Measures ; 

6 To provide for the Punishment of counterfeiting the Securities 
and current Coin of the United States ; 

7 To establish Post Offices and post Roads ; 
8 To promote the progress of Science and useful Arts, by secur- 
ing for limited Times to Authors and Inventors the exclusive Right 
to their respective Writings and Discoveries ; 

9 To constitute Tribunals inferior to the supreme Court ; 
I0 To define and punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations ; 

1! To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Captures on Land and W ater ; 

12 To raise and support Armies, but no Appropriation of Money 
to that Use shall be for a longer Term than two Years ; 
13 To provide and maintain a Navy ; 

14 To make Rules for the Government and Regulation of the land 
and naval Forces; 

15 To provide for calling forth the Militia to execute the Laws of 
the Union, suppress Insurrections and repel Invasions ; 

16 To provide for organizing, arming, and disciplining, the Militia, 
and for governing such Part of them as may be employed in the 
Service of the United States, reserving to the States respectively, 



532 CONSTITUTION OF THE UNITED STATES. 

the Appointment of the Officers, and the Authority of training the 
Militia according to the Discipline prescribed by Congress ; 

17 To exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Cession 
of particular States, and the Acceptance of Congress, become the 
Seat of the Government of the United States, and to exercise like 
Authority over all Places purchased by the Consent of the Legisla- 
ture of the State in which the Same shall be, for the Erection of 
Forts, Magazines, Arsenals, Dock-Yards, and other needful Build- 
ings ; — And 

18 To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other Powers 
vested by this Constitution in the Grovernment of the United States, 
or in any Department or Officer thereof. 

Section. 9. a The Migration or Importation of such Persons as 
any of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the Year one thousand 
eight hundred and eight, but a Tax or Duty may be imposed on 
such Importation, not exceeding ten dollars for each Person. 

2 The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it. 

3 No Bill of Attainder or ex post facto Law shall be passed. 

4 No Capitation, or other direct, Tax shall be laid, unless in Pro- 
portion to the Census or Enumeration herein before directed to be 
taken. 

5 No Tax or Duty shall be laid on Articles exported from any 
State. 

6 No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of another : 
nor shall Vessels bound to, or from, one State, be obliged to enter, 
clear, or pay Duties in another. 

7 No Money shall be drawn from the Treasury, but in Conse- 
quence of Appropriations made by Law ; and a regular Statement 
and Account of the Recipts and Expenditures of all public Money 
shall be published from time to time. 

8 No Title of Nobility shall be granted by the United States : 



constitution or the united states. 533 

And no Person holding any Office of Profit or Trust under them, 
shall, without the Consent of the Congress, accept of any present, 
Emolument, Office, or Title, of any kind whatever, from any King, 
Prince, or foreign State. 

Section. 10. 'No State shall enter into any Treaty, Alliance, 
or Confederation ; grant Letters of Marque and Reprisal ; coin 
Money; emit Bills of Credit ; make any Thing but gold and silver 
Coin a Tender in Payment of Debts ; pass any Bill of Attainder, 
ex post facto Law, or Law impairing the Obligation of Contracts, 
or grant any Title of Nobility. 

2 No State shall, without the consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, except what may be ab- 
solutely necessary for executing it's inspection Laws : and the net 
Produce of all Duties and Imposts, laid by any State on Imports or 
Exports, shall be for the Use of the Treasury of the United States; 
and all such Laws shall be subject to the Revision and Controul of 
the Congress. 

3 No State shall, without the Consent of Congress, lay any Duty 
of Tonnage, keep Troops, or Ships of War in time of Peace, enter 
into any x\greement or Compact with another State, or with a for- 
eign Power, or engage in War, unless actually invaded, or in such 
imminent Danger as will not admit of Delay. 

ARTICLE, n. 

Section. 1. 'The executive Power shall be vested in a Presi- 
dent of the United States of America. He shall hold his Office 
during the Term of four Years, and, together with the Vice Presi- 
dent, chosen for the same Term, be elected, as follows 

2 Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole Num- 
ber of Senators and Representatives to which the State may be en- 
titled in the Congress : but no Senator or Representative, or Per- 
son holding an Office of Trust or Profit under the United States, 
shall be appointed an Elector. 

[* The Electors shall meet in their respective States, and vote by Ballot for 
two Persons, of whom one at least shall not be an Inhabitant of the same State 



* This clause within brackets has been superseded and annulled by the 12th amend- 
ment, on pnge 542. 



534 CONSTITUTION OF THE UNITED STATES- 

with themselves. And they shall make a List of all the Persons voted for, and 
of the Number of Votes for each; which List they shall sign and certify, and 
transmit sealed to the Seat of the Government of the United States, directed to 
the President of the Senate. The President of the Senate shall, in the Presence 
of the Senate and House of Representatives, open all the Certificates, and the 
Votes shall then be counted. The Person having the greatest Number of Votes 
shall be the President, if such Number be a Majority of the whole Number of 
Electors appointed ; and if there be more than one who have such Majority, 
and have an equal Number of Votes, then the House of Representatives shall im- 
mediately chuse by Ballot one of them for President ; and if no Person have a 
Majority, then from the five highest on the List the said House shall in like Manner 
chuse the President. But in chusing the President, the Votes shall be taken by 
States, the Representation from each State having one Vote ; A Quorum for this 
Purpose shall consist of a Member or Members from two thirds of the States, and 
a Majority of all the States shall be necessary to a Choice. In every Case, after 
the Choice of Ihe President, the Person having the greatest Number of Voles 
of the Electors shall be the Vice President. But if there should remain two or 
more who have equal Votes, the Senate shall chuse from them by Ballot the 
Vice President.] 

3 The Congress may determine the Time of chusing the Electors, 
and the Day on which they shall give their Votes ; which Day shall 
be the same throughout the United States. 

4 No Person except a natural born' Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, shall 
be eligible to the Office of President ; neither shall any Person be 
eligible to that Office who shall not have attained to the Age of 
thirty five Years, and been fourteen Years a Resident within the 
United States. 

5 In Case of the Removal of the President from Office, or of his 
Death, Resignation, or Inability to discharge the Powers and Duties 
of the said Office, the same shall devolve on the Yice President, and 
the Congress may by Law provide for the Case of Removal, Death, 
Resignation, or Inability, both of the President and Yice Presi- 
dent, declaring what Officer shall then act as President, and such 
Officer shall act accordingly, until tbe Disability be removed, or a 
President snail be elected. 

6 The President shall, at stated Times, receive for his Services, 
a Compensation, which shall neither be encreased nor diminished 
during the Period for which he shall have been elected, and he shall 



CONSTITUTION OF THE UNITED STATES. 535 

not receive within that Period any other Emolument from the United 
States, or any of them. 

'Before he enter on the Execution of his Office, he shall take 
the following Oath or Affirmation : — 

" I do solemnly swear (or affirm) that I will faithfully execute 
" the Office of President of the United States, and will to the best 
" of my Ability, preserve, protect and defend the Constitution of 
" the United States. 

Section. 2. 'The President shall be Commander in Chief of 
the Army and Navy of the United States, and of the Militia of the 
several States, when called into the actual Service of the United 
States ; he may require the Opinion, in writing, of the principal 
Officer in each of the executive Departments, upon any Subject re- 
lating to the Duties of their respective Offices, and he shall have 
Power to grant Reprieves and Pardons for Offences against the 
United States, except in Cases of Impeachment. 

2 He shall have Power, by and with the Advice and Consent of 
the Senate, to make Treaties, provided two thirds of the Senators 
present concur ; and he shall nominate, and by and with the Ad- 
vice and Consent of the Senate, shall appoint Ambassadors, other 
public Ministers and Consuls, Judges of the supreme Court, and all 
other Officers of the United States, whose Appointments are not 
herein otherwise provided for, and which shall be established by 
Law : but the Congress may by Law vest the Appointment of such 
inferior Officers, as they think proper, in the President alone, in 
the Courts of Law, or in the Heads of Departments. 

3 The President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions 
which shall expire at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and expe- 
dient ; he may, on extraordinary Occasions, convene both Houses, 
or either of them, and in Case of Disagreement between them, with 
Respect to the Time of Adjournment, he may adjourn them to such 
Time as he shall think proper ; he shall receive Ambassadors and 
other public Ministers ; he shall take Care that the Laws be faith- 



536 CONSTITUTION OF THE UNITED STATES. 

fully executed, and shall Commission all the officers of the United 
States. 

Section. 4. The President, Vice President and all civil Offi- 
cers of the United States, shall be removed from Office on Im- 
peachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors. 

ARTICLE. III. 

Section. 1. The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish. The Judges, 
both of the supreme and inferior Courts, shall hold their Offices 
during good Behavior, and shall, at stated Times, receive for their 
Services, a Compensation, which shall not be diminished during 
their Continuance in Office 

Section 2. 'The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the Laws of the 
United States, and Treaties made, or which shall be made, under 
their Authority ; — to all Cases affecting Ambassadors, other public 
Ministers, and Consuls ; — to all Cases of admiralty and maritime 
Jurisdiction ; — to Controversies to which the United States shall 
be a Party; — to Controversies between two or more States; — be-, 
tween a State and Citizens of another State ; — between Citizens of 
different States; — between Citizens of the same State claiming 
Lands under Grants of different States, and between a State, or the 
Citizens thereof, and foreign States, Citizens or Subjects. 

2 In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be a Party, the supreme 
Court shall have original Jurisdiction. In all the other Cases be- 
fore mentioned, the supreme Court shall have appellate Jurisdic- 
tion, both as to Law and Fact, with such Exceptions, and under 
such Regulations as the Congress shall make. 

3 The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury ; and such Trial shall be held in the State where 
the said Crimes shall have been committed ; but when not commit- 
ted within any State, the Trial shall be at such Place or Places as 
the Congress may by Law have directed. 

Section. 3. ■ Treason against the United States, shall consist 



CONSTITUTION OF THE UNITED STATES. 537 

only in levying War against them, or in adhering to their Enemies, 
giving them Aid and Comfort. No Person shall be convicted of 
Treason unless on the Testimony of two Witnesses to the same 
overt Act, or on Confession in open Court. 

'-'The Congress shall have Power to declare the Puuishment of 
Treason, but no Attainder of Treason shall work Corruption of 
Blood, or Forfeiture except during the Life of the Person attainted. 

ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to 
the public Acts, Records, and judicial Proceedings of every other 
State. And the Congress may by general Laws prescribe the Man- 
ner in which such Acts, Records and Proceedings shall be proved, 
and the Effect thereof. 

Section. 2. J The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 

2 A Person charged in any State with Treason, Felony, or other 
Crime, who shall flee from Justice, and be found in another State, 
shall on Demand of the executive Authority of the State from 
which he fled, be delivered up, to be removed to the State having 
Jurisdiction of the Crime. 

3 No Person held to Service or Labour in one State, under the 
Laws thereof, escaping into another, shall, in Consequence of any 
Law or Regulation therein, be discharged from such Service or 
Labour, but shall be delivered up on Claim of the Party to whom 
such Service or Labour may be due. 

Section. 3. *New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within 
the Jurisdiction of any other State ; nor any State be formed by 
the Junction of two or more States, or Parts of States, without the 
Consent of the Legislatures of the States concerned as well as of 
the Congress. 

2 The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or other 
Property belonging to the United States ; and nothing in this Consti- 
tution shall be so construed as to Prejudice any Claims of the United 
States, or of any particular State. 
23* 



538 CONSTITUTION OF THE UNITED STATES. 

Section. 4. The United States shall guarantee to every State 
in this Union a Republican Form of Government, and shall protect 
each of them against Invasion ; and on Application of the Legisla- 
ture, or of the Executive ( when the Legislature cannot be convened) 
against domestic Violence. 

ARTICLE. V. 

The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on 
the Application of the Legislatures of two thirds of the several 
States, shall call a Convention for proposing Amendments, which, 
in either Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of three fourths 
of the several States, or by Conventions in three fourths thereof, as 
the one or the other Mode of Ratification may be proposed by the 
Congress ; Provided that no Amendment which may be made prior 
to the Year one thousand eight hundred and eight shall in any 
Manner affect the first and fourth Clauses in the Ninth Section of 
the first Article ; and that no State, without its Consent, shall be 
deprived of its equal Suffrage in the Senate. 

ARTICLE. VI. 

'All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against the 
United States under this Constitution, as under the Confederation. 

2 This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or which 
shall be made, under the authority of the United States, shall be 
the supreme Law of the Land ; and the Judges in every State shall 
be bound thereby, any Thing in the Constitution or Laws of any 
State to the Contrary notwithstanding. 

3 The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive and 
judicial Officers, both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support this Constitu- 
tion ; but no religious Test shall ever be required as a Qualification 
to any Office or public Trust under the United States. 
ARTICLE. VII. 

The Ratification of the Conventions of nine States, shall be suf- 



CONSTITUTION OF THE UNITED STATES. 



539 



ficient for the Establishment of this Constitution between the States 
so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States 
present the Seventeenth Day of September in the Year 
of our Lord one thousand seven hundred and Eighty seven 
and of the Independance of the United States of America 
the Twelfth. Ill Witness whereof We have hereunto 
subscribed our Names, 

GEO WASHINGTON— 
Presdt and deputy from Virginia. 



John Langdon, 
Nathaniel Gokham, 
Wm. Saml. Johnson, 
Alexander Hamilton. 

Wil : Livingston, 
Wm. Paterson, 

B. Franklin, 
Robt. Morris, 
Tho : Fitsimons, 
James Wilson, 

Geo : Read, 
John Dickinson, 
Jaco : Broom. 

James M'Henry, 
Danl. Carroll. 

John Blair, 

Wm. Blount, 
Hu. Williamson. 

J. Rutledge, 
Charles Pinckney, 

William Few, 
Attest : 



NEW HAMPSHIRE. 

Nicholas Gilman 

MASSACHUSETTS. 

Rufcs King 

CONNECTICUT. 

Roger Sherman. 

NEW YORK. 

NEW JERSEY. 

David Brearley, 
Jona. Dayton. 

PENNSYLVANIA. 

Thomas Mifflin, 
Geo : Clymer, 
Jared Ingersoll, 
Gouv : Morris. 

DELAWARE. 

Gunning Bedford, JunV, 
Richard Bassett, 

MARYLAND. 

Dan : of St. Thos. Jenifer, 

VIRGINIA. 

Jas. Madison, Jr., 

NORTH CAROLINA. 

Rich'd Dobbs Spaight, 

SOUTH CAROLINA. 

Charles Cotesworth Pinckney, 
Pierce Butler. 
GEORGIA. 

Abr. Baldwin. 

WILLIAM JACKSON, Secretary. 



ARTICLES 

IN ADDITION TO, AND AMENDMENT OF, 
THE CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA. 

Proposed hy Congress, and ratified ly the Legislatures of the several 
States, pursuant to the fifth article of the original Constitution, 
(ARTICLE 1.) 
Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press ; or the right of the people peace- 
ably to assemble, and to petition the G-overnment for a redress of 
grievances. 

(ARTICLE II.) 
A well regulated Militia, being necessary to the security of a 
free State, the right of the people to keep and bear Arms, shall not 
be infringed. 

(ARTICLE m.) 
No Soldier shall, in time of peace be quartered in any house, 
without the consent of the Owner, nor in time of war, but in a 
manner to be prescribed by Law. 

(ARTICLE IY.) 
The right of the people to be secure in their persons, houses, 
papers and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and particularly describing 
the place to be searched, and the persons or things to be seized. 



AMENDMENTS. 541 

(ARTICLE V.) 
No person shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger: 
nor shall any person be subject for the same offence to be twice put 
in jeopardy of life or limb ; nor shall be compelled in any Criminal 
Case to be a witness against himself, nor be deprived of life, liberty, 
or property, without due process of law ; nor shall private property 
be taken for public use, without just compensation. 

(ARTICLE VI.) 

In all criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and dis- 
trict wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation ; to be confronted with 
the witnesses against him ; to have Compulsory process for obtain- 
ing Witnesses in his favour, and to have the Assistance of Counsel 
for his defence. 

(ARTICLE VII.) 

In Suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of the United States, than according to the rules of the com- 
mon law. 

(ARTICLE VIII.) 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

(ARTICLE IX.) 
The enumeration in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the people. 

(ARTICLE X.) 
The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respec- 
tively, or to the people. 



542 CONSTITUTION" OF THE UNITED STATES. 

(ARTICLE XII.) 

The Judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by Citizens of another State, or by 
Citizens or Subjects of any Foreign State. 
(ARTICLE XII.) 

The Electors shall meet in their respective states, and vote by 
ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same state with themselves ; they shall 
name in their ballots the person voted for as President, and in dis- 
tinct ballots the person voted for as Vice-President, and they shall 
make distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes for 
each, which lists they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, directed to the 
President of the Senate; — The President of the Senate shall, in 
presence of the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted; — The person hav- 
ing the greatest number of votes for President, shall be the Presi- 
dent, if such number be a majority of the whole number of Electors 
appointed ; and if no person have such majority, then from the per- 
sons having the highest numbers not exceeding three on the list of 
those voted for as President, the House of Representatives shall 
choose immediately, by ballot, the President. But in choosing the 
President, the votes shall be taken by states, the representation 
from each state having one vote ; a quorum for this purpose shall 
consist of a member or members from two-thirds of the states, and 
a majority of all the states shall be necessary to a choice. And if 
the House of Representatives shall not choose a President whenever 
the right of choice shall devolve upon them, before the fourth day 
of March next following, then the Vice-President shall act as Presi- 
dent, as in the case of the death or other constitutional disability of 
the President. The person having the greatest number of votes as 
Vice-President, shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no per- 
son have a majority, then from the two highest numbers on the list, 
the Senate shall choose the Vice-President ; a quorum for the pur- 



AMEXDMENTS. 543 

pose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United States. 
The following is prefixed to the first ten * of the preceding amendments. 
CONGRESS OF THE UNITED STATES, 

Begun and held at the City of New York, on Wednesday, the fourth of March, 
one thousand .«even hundred and eighty-nine. 

The Conventions of a number of the States, having at the time 
of their adopting the Constitution, expressed a desire, in order to 
prevent misconstruction or abuse of its powers, that further declara- 
tory and restrictive clauses should be added : And as extending 
the ground of public confidence in the Government, will best insure 
the beneficent end of its institution ; 

Resolved by the Senate and House of Representatives of the United 
States of America, in Congress assembled, two thirds of both Houses 
concurring, That the following Articles be proposed to the Legisla- 
tures of the several States, as amendments to the Constitution of 
the United States, all, or any of which articles, when ratified by 
three-fourths of the said Legislatures, to be valid to all intents and 
purposes, as part of the said Constitution ; viz. 

Articles in addition to, and Amendment of the Constitution of 

* It may be proper here to state that 12 articles of amendment were proposed 
by the first Congress, of which but 10 were ratified by the States — the first and 
second in order not having been ratified by the requisite number of States. 

These two were as follows : 

Article the first.... After the first enumeration required by the first Article of 
the Constitution, there shall be one Representative for every thirty thousand, until 
the number shall amount to one hundred, after which, the proportion shall be so re- 
gulated by Congress, that there shall not be less than one hundred Representa- 
tives, nor less than one Representative for every forty thousand persons, until 
the number of Representatives shall amount to two hundred, after which the pro. 
portion shall be so regulated by Congress, that there shall not be less than two 
hundred Representatives, nor more than one Representative for every fifty thou- 
sand persons. 

Article second....No law, varying the compensation for the services of the 
Senators and Representatives, shall take effect, until an election of Representa- 
tives shall have intervened. 



544 CONSTITUTION- OF THE UNITED STATES. 

the United States of America, proposed by Congress, and ratified 
by the Legislatures of the several States pursuant to the fifth article 
of the original Constitution. 

The first ten amendments of the Constitution were ratified by 
the States, as follows, viz. : 

By New Jersey, 20th November, 1789. 

By Maryland, 19th December, 1789. 

By North Carolina, 22d December, 1789. 

By South Carolina, 19th January, 1790. 

By New Hampshire, 25th January, 1790. 

By Delaware, 28th January, 1790. 

By Pennsylvania, 10th March, 1790. 

By New York, 27th March, 1790. 

By Rhode Island, 15th June, 1790. 

By Vermont, 3 November, 1791. 

By Virginia, 15 December, 1791. 
The following is prefixed to the eleventh of the preceding amendments: 

THIRD CONGRESS OF THE UNITED STATES: 

At the first session, hegim and held at the city of Philadelphia, in the 
State of Pennsylvania, on Monday the second of December, one thou- 
sand seven hundred and ninety -three. 

Resolved by the Senate and House of Representatives of the United 
States of America, in Congress assembled, two thirds of both Houses 
concurring, That the following Article be proposed to the Legisla- 
tures of the several S tates, as an amendment to the Constitution of 
the United States ; which when ratified by three-fourths of the 
said Legislatures shall be valid as part of the said Constitution, viz. : 
The following is prefixed to the twelfth of the preceding amendments: 

EIGHTH CONGRESS OF THE UNITED STATES : 
At the first session, begun and held at the city of Washington, in the 
Territory of Columbia, on Monday the seventeenth of October, one thou- 
sand eight hundred and three : 

Resolved by the Senate and House of Representatives of the United 
States of America, in Congress assembled^ Two thirds of both 
Houses concurring, that in lieu of the third paragraph of the first 
section of the second article of the Constitution of the United States, 



AMENDMENTS. 545 

the following be proposed as an amendment to the Constitution of 
the United States, which when ratified by three-fourths of the 
legislatures of the several states, shall be valid to all intents and 
purposes, as part of the said Constitution, to wit : 

The ten first of the preceding amendments were proposed at the 
first session of the first Congress, of the United States, 25 September, 
1789, and were finally ratified by the constitutional number of 
States, on the 15th day of December, 1791. The eleventh amend- 
ment was proposed at the first session of the third Congress, 5 
March, 1794, and was declared in a message from the President of 
the United States to both houses of Congress, dated 8th January, 
1798, to have been adopted by the constitutional number of States. 
The twelfth amendment was proposed at the first session of the 
eighth Congress, 12 December, 1803, and was adopted by the con- 
stitutional number of States in 1804, according to a public notice 
thereof by the Secretary of State, dated 25th September, of the 
same year. 



ADDENDA TO PART SECOND. 



[At a time when the very foundation of government is shaken, and the edifice 
of constitutional freedom tottering, few treatises can be read with greater profit than 
those of Locke " On Government; " from Avhich, therefore, we have determined to pre- 
sent the following extracts. And at a time when the United States are occupying to. 
wards the Confederate States, an attitude almost identical with that assumed towards 
us by England in the Revolutionary War, it cannot be amiss to 6how how one of the 
wisest and noblest of English statesmen— Burke— proposed to deal with the revolted 
colonies. On this account we give here an abridgment of his greatest speech on Amer- 
ican affairs.] 



LOCKE OJST GOYEEJSTMElSrT. 

OBJECTS OF GOVERNMENT ARBITRARY POWER COMPARED WITH A GOVERNMENT OP 

LAWS CONSENT AND FORCE CONQUEST RIGHT OF THE CONQUERED LIMITS 

OF THE RIGHT WHICH CAN BE OBTAINED BY A RIGHTFUL CONQUEROR OVER 

HIS OWN PEOPLE OVER THE VANQUISHED THE LATTER DESPOTICAL BUT NOT 

UNIVERSAL IN ITS EXTENT NOT INCLUDING THE PROPERTY OF THE VANQUISHED, 

WHICH IS HIS CHILDREN'S BUT ONLY THE LIVES OF THOSE ACTUALLY EN- 
GAGED IN WAR THESE PROPOSITIONS LOGICALLY DISCUSSED — RIGHT OF REBEL- 
LION RESERVED TO THE CONQUERED EVEN AFTER FORCED CONSENT TO THE VIC- 
TOR'S AUTHORITY — THIS RIGHT AN INDEFEASIBLE INHERITANCE OF THEIR POS- 
TERITY CASE OF THE GREEK CHRISTIANS — SUMMARY — CASE OF HEZEKIAH 

ARBITRARY RULERS PUT THEMSELVES INTO A STATE OF WAR WITH THE PEOPLE 

THEREBY ABSOLVING THEM FROM ALLEGIANCE — THE PEOPLE NOT DISPOSED TO 

REVOLUTION THE RIGHT OF REVOLUTION AND REBELLION WHEN IT EXISTS 

OBJECTIONS ANSWERED. 

Though men, when they enter into society, give up the equality, 
liberty, and executive power they had in the state of nature, into 
the hands of the society, to be so far disposed of by the legislative 
as the good of the society shall require ; yet it being only with an 
intention in every one the better to preserve himself, his liberty, 
and property (for no rational creature can be supposed to change 
his condition with an intention to be worse) ; the power of the so- 



ADDENDA. 54V 

ciety or legislative constituted by them, can never be supposed to 
extend farther than the common good ; but is obliged to secure 
every one's property by providing against those three defects above 
mentioned, that made the state of nature so unsafe and uneasy. And 
so whoever has the legislative or supreme power of any common, 
wealth is bound to govern by established standing laws, promulgated 
and known to the people, and not by extemporary decrees ; by indif- 
ferent and upright judges, who are to decide controversies by those 
laws ; and to employ the force of the community at home only in the 
execution of such laws ; or abroad to prevent or redress foreign in- 
juries, and secure the community from inroads and invasion. And 
all this to be directed to no other end but the peace, safety, and 
public good of the people. 

Absolute arbitrary power, or governing without settled stand- 
ing laws, can neither of them consist with the ends of society and 
government, which men could not quit the freedom of the state of 
nature for, and tie themselves up under, were it not to preserve 
their lives, liberties, and fortunes, and by stated rules of right and 
property to secure their peace and quiet. It cannot be supposed 
that they should intend, had they a power so to do, to give to any 
one or more, an absolute arbitrary power over their persons and 
estates, and put a force in the magistrate's hand to execute his un- 
limited will arbitrarily upon them. This were to put themselves 
in a worse condition than the state of nature, wherein they had a 
liberty to defend their right against the injuries of others, and 
were upon equal terms of force to maintain it, whether invaded by 
a single man or many in combination. Whereas by supposing they 
have given up themselves to the absolute arbitrary power and will 
of a legislator, they have disarmed themselves, and armed him, to 
make a prey of them when he pleases ; he being in a much worse 
condition who is exposed to the arbitrary power of one man, who 
has the command of one hundred thousand, than he that is exposed 
to the power of one hundred thousand single men ; nobody being 
secure, that his will, who has such a command, is better than that of 
other men, though his force be one hundred thousand times stronger. 
And therefore whatever form the commonwealth is under, the ruling 
power ought to govern by declared and received laws, and not by extern- 



548 ADDENDA. 

porary dictates and undetermined resolutions ; for then mankind will be 
in afar worse condition than in the state of nature, if they shall have 
armed one or a few men with the joint power of a multitude, to force 
them to obey at pleasure the exorbitant and unlimited decrees of 
their sudden thoughts, or unrestrained, and till that moment unknown 
wills, without having any measures set down which may guide and 
justify their actions; for all the power the government has being only 
for the good of society, as it ought not to be arbitrary and at pleasure, 
so it ought to be exercised by established and promulgated laws ; that 
both the people may know their duty, and be safe and secure with- 
in the limits of the law ; and the rulers too Jcept within their bounds, 
and not be tempted by the power they have in their hands to em- 
ploy it to such purpose, and by such measures, as they would not 
have known, and own not willingly. — Locke, vol. v. pp. 420, 421. 

Though governments can originally have no other rise than that 
before mentioned, nor politics be founded on anything but the consent 
of the people ; yet such have been the disorders ambition has filled 
the world with, that in the noise of war, which makes so great a 
part of the history of mankind, this consent is little taken notice of; 
and, therefore, many have mistaken the force of arms for the coDsent 
of the people, and reckon conquest as one of the originals of gov- 
ernments. But conquest is so far from setting up any government, 
as demolishing a house is from building a new one in its place. 
Indeed it often makes way for a new frame of commonwealth by des- 
troying the former ; but without the consent of the people, can 
never erect a new one. 

That the aggressor, who puts himself into the state of war with 
another, and unjustly invades another man's right, can, by such an 
unjust war, never come to have a right over the conquered, will be 
easily agreed by all men, who will not think that robbers and 
pirates have a right of empire over whomsoever they have force 
enough to master ; or that men are bound by promises, which un- 
lawful force extorts from them. Should a robber break into my. 
house, and, with a dagger at my throat, make me seal deeds to con- 
vey my estate to him, would this give him any title % Just such a 
title by his sword has an unjust conqueror who forces me into sub- 
mission. The injury and the crime are equal, whether committed 






ADDENDA. 549 

by the wearer of a crown, or some petty villain. The title of 
the offender, and the number of his followers make no difference in 
the offence, unless it be to aggravate it. The only difference is, 
great robbers punish little ones, to keep them in their obedience ; 
but the great ones are rewarded with laurels and triumphs ; because 
they are too big for the weak hands of justice in this world, and 
have the power in their own possession, which should punish of- 
fenders. What is my remedy against a robber that so broke into 
my house ? Appeal to the law for justice. 

But the conquered, or their children, have no court, no arbi- 
trator on earth to appeal to. Then they may appeal, as Jephthah 
did, to Heaven, and repeat their appeal till they have recovered the 
native right of their ancestors, which was to have such a legislative 
over them as the majority should approve, and freely acquiesce in. 

But supposing victory favors the right side, let us consider a 
conqueror in a lawful war, and see what power he gets, and over 
whom. First, it is plain, " he gets no power by his conquest over 
those that conquered with him." They that fought on his side 
cannot suffer by the conquest, but must at least be as much free- 
men as they were before. And most commonly they serve upon 
terms, and on conditions to share with their leader, aod enjoy a part 
of the spoil, and other advantages that attended the conquering 
sword ; or at least have a part of the subdued country bestowed 
upon them. And " the conquering people are not, I hope, to be 
slaves by conquest" and wear their laurels only to show they are 
sacrifices to their leader's triumph. 

Secondly, I say then the conqueror gets no power but only over 
those who have actually assisted, concurred, or consented to that 
unjust force that is used against him ; for the people having given 
to their governors no power to do an unjust war (for they never had 
such a power in themselves), they ought not to be charged as guilty 
of the violence and injustice that is committed in an unjust war, any 
farther than they actually abet it ; no more than they are to be 
thought guilty of any violence or oppression their governors should 
use upon the people themselves, or any part of their fellow sub- 
jects, they having impowered them no more to the one than to 
the other. 



550 ADDENDA. 

The conqueror's power over the lives of the conquered being 
only because they have used force to do or maintain an injustice, 
he can have that power only over those who have concurred in that 
force ; all the rest are innocent ; and he has no more title over the 
people of that country, who have done him no injury, and so have 
made no forfeiture of their lives, than he has over any other, who, 
without any injuries or provocations, have lived upon fair terms 
with him. 

Thirdly, the power a conqueror gets over those he overcomes in 
a just war, is perfectly despotical ; he has an absolute power over 
the lives of those, who, by putting themselves in a state of war, 
have forfeited them ; but he has not thereby a right and title to 
their possessions. 

Though in all war there be usually a complication of force 
and damage, and the aggressor seldom fails to harm the estate, 
when he uses force against the persons of those he makes war 
upon ; yet it is the use of force only that puts a man into the state 
of war. 

It is the " unjust use of force that puts a man into the state 
of war " with another ; and thereby he that is guilty of it makes 
a forfeiture of his life ; for quitting reason, which is the rule given 
between man and man, and using force, the way of beasts, he becomes 
liable to be destroyed by him he uses force against, as any savage 
ravenous beast, that is dangerous to his being. 

"But because the miscarriages of the father are no faults of the 
children, and they may be rational and peaceable, notwithstanding 
the brutishness and injustice of the father ; the father, by his mis- 
carriages and violences, can forfeit but his own life, but involves 
not his children in his guilt or destruction. His goods, which 
nature, that willeth the preservation of all mankind as much as is 
possible, hath made them to belong to the children to keep them 
from perishing, do still belong to his children : for supposing them 
not to have joined in the war, either through infancy, absence, or 
choice, they have done nothing to forfeit them ; nor has the con- 
queror any right to take them away, by the bare title of having 
subdued him that by force attempted his destruction ; though per- 
haps he may have some right to them, to repair the damage he has 



ADDENDA. 551 

sustained by the war, and the defence of his own right ; which how 
far it reaches to the possessions of the conquered, we shall see by 
and by. So that he that by conquest has a right over a man's 
person to destroy him if he pleases, has not thereby a right over 
his estate to possess and enjoy it; for it is the brutal force the 
aggressor has used, that gives his adversary a right to take away 
his life, and destroy him if he pleases as a noxious creature ; but 
it is damage sustained that alone gives him title to another man's 
goods : for though I may kill a thief that sets on me in the 
highway, yet I may not (which seems less) take away his money 
and let him go : this would be robbery on my side. His force and 
the state of war he put himself in, made him forfeit his life, but 
gave me no title to his goods. The right then of conquest extends 
only to the lives of those who joined in the war, not to their estates, 
but only in order to make reparation for the damages received, and 
the charges of the war ; and that too with the reservation of the 
right of the innocent wife and children. 

Let the conqueror have as much justice on his side as could be 
supposed, he has no right to seize more than the vanquished could 
forfeit : his life is at the victor's mercy ; and his service and goods 
he may appropriate, to make himself reparation ; but he cannot 
take the goods of his wife and children : they too had a title to the 
goods he enjoyed, and their shares in the estate he possessed : for 
example, I in the state of nature (and all commonwealths are in 
the state of nature one with another) have injured another man, 
and refusing to give satisfaction, it comes to a state of war, wherein 
my defending by force what I had gotten unjustly makes me the 
aggressor. I am conquered : my life, it is true, as forfeit, is at 
mercy, but not my wife's and children's. They made not the war, 
nor assisted in it. I could not forfeit their lives ; they were not 
mine to forfeit. My wife had a share in my estate ; that neither 
could I forfeit. And my children also, being born of me, had a 
right to be maintained out of my labor or substance. Here then 
is the case : the conqueror has a title to reparation for damages 
received, and the children have a title to their father's estate for 
their subsistence : for as to the wife's share, whether her labor, or 
compact, gave her a title to it, it is plain, her husband could not 



552 ADDENDA. 

forfeit what was hers. What must be done in the case ? I answer 
the fundamental law of nature being, that all, as much as may be, 
should be preserved, it follows, that if there be not enough fully to 
satisfy both, viz., for the conqueror's losses and children's main- 
tenance, he that hath and to spare, must remit something of his 
full satisfaction, and give way to the pressing and preferable title 
of those who are in danger to perish without it. 

Over those then that joined with him in the war, and over 
those of the subdued country that opposed him not, and the pos- 
terity of even those that did, the conqueror even in a just war 
hath, by his conquest, no right of dominion : they are free from any 
subjection to him, and if their former government be dissolved, 
they are at liberty to begin and erect another to themselves. 

The conqueror, it is true, usually, by the force he has over 
them, compels them, with a sword at their breasts, to stoop to 
his conditions, and submit to such a government as he pleases to 
afford them ; but the inquiry is, what right has he to do so ? If it 
be said, they submit by their own consent, then this allows their 
own consent to be necessary to give the conqueror a title to rule 
over them. It remains only to be considered, whether promises ex- 
torted by force, without right, can be thought consent, and how far 
they bind. To which I shall say, they bind not at all ; because 
whatsoever another gets from me by force, I still retain the right 
of, and he is obliged presently to restore. He that forces my horse 
from me, ought presently to restore him, and I have still a right to 
retake him. By the same reason, he that forced a promise from 
me, ought presenty to restore it, i. e., quit me of the obligation of 
it : or I may resume it myself, i. e., choose whether I will perform 
it ; for the law of nature laying an obligation on me only by the 
rules she prescribes, cannot oblige me by the violation of her rules : 
such is the extorting anything from me by force. Nor does it at 
all alter the case to say, '•' I gave my promise," no more than it ex- 
cuses the force, and passes the right, when I put my hand in my 
pocket, and deliver my purse myself to a thief, who demands it 
with a pistol at my breast. 

From all which it follows, that the government of a conqueror, 
imposed by force on the subdued, against whom he had no right 



ADDENDA. 553 

of war, or who joined not in the war against him where he had 
right, has no obligation upon them. 

But let us suppose that all the men of that community, being 
all members of the same body politic, may be taken to have joined 
in that unjust war, wherein they are subdued, and so their lives are 
at the mercy of the conqueror. 

I say this concerns not their children who are in their minority : 
for since a father hath not, in himself, a power over the life or 
liberty of his child, no act of his can possibly forfeit it. So that 
the children, whatever may have happened to the fathers, are 
freemen, and the absolute power of the conqueror reaches no 
farther than the persons of the men that were subdued by him, 
and dies with them : and should he govern them as slaves subjected 
to his absolute arbitrary power, he has no such right or dominion 
over their children. He can have no power over them but by their 
own consent, whatever he may drive them to say or do : and he 
has no lawful authority, whilst force, and not choice, compels them 
to submission. 

The inhabitants of any country, who are descended, and derive 
a title to their estates from those who are subdued, and had a 
government forced upon them against their free consents, retain a 
right to the possession of their ancestors, though they consent not 
freely to the government, whose hard conditions were by force im- 
posed on the possessors of that country : for, the first conqueror 
never having had a title to the land of that country, the people 
who are the descendants of, or claim under those who were forced 
to submit to the yoke of a government by constraint, have always 
a right to shake it off, and free themselves from the usurpation or 
tyranny which the sword had brought in upon them, till their 
rulers put them under such a frame of government as they willing- 
ly and of choice consent to. Who doubts but the Grecian Chris- 
tians, descendants of the ancient possessors of that country, may 
justly cast off the Turkish yoke, which they have so long groaned 
under, whenever they have an opportunity to do it ? For no govern- 
ment can have a right to obedience from a people who have not 
freely consented to it ; which they can never be supposed to do, 

till either they are put in a full state of liberty to choose their 
24 



554 ADDENDA. 

government and governors, or at least till they have such standing 
laws, to which they have by themselves or their representatives 
given their free consent ; and also till they are allowed their due 
property, which is so to be proprietors of what they have, that 
nobody can take away any part of it without their own consent, 
without which men under any government are not in the state 
of freemen, but are direct slaves under the force of war. 

The short of the case in conquest is this : the conqueror, if he 
have a just cause, has a despotical right over the persons of all that 
actually aided and concurred in the war against him, and a right 
to make up his damage and cost out of their labor and estates, so 
he injure not the right of any other. Over the rest of the people, 
if there were any that consented not to the war, and over the 
children of the captives themselves, or the possessions of either, he 
has no power ; and so can have, by virtue of conquest, no lawful 
title himself to dominion over them, or derive it to his posterity ; 
but is an aggressor, if he attempts upon their properties, and 
thereby puts himself in a state of war against them : and has no 
better a right of principality, he, nor any of his successors, than 
Hingar, or Hubba, the Danes, had here in England ; or Spartacus, 
had he conquered Italy, would have had ; which is to have their 
yoke cast off, as soon as God shall give those under their subjection 
courage and opportunity to do it. This, notwithstanding what- 
ever title the kings of Assyria had over Judah, by the sword, God 
assisted Hezekiah to throw off the dominion of that conquering 
empire. " And the Lord was with Hezekiah and he prospered ; 
wherefore he went forth, and he rebelled against the king of 
Assyria, and served him not." (2 Kings xviii. 7.) Whence it is 
plain that shaking off a power, which force and not right hath set 
over any one, though it hath the name of rebellion, yet is no 
offence before God, but is that which he allows and countenances, 
though even promises and covenants, when obtained by force, have 
intervened : for it is very probable to any one that reads the story 
of Ahaz and Hezekiah attentively, that the Assyrians subdued 
Ahaz, and deposed him, and made Hezekiah king in his father's 
lifetime ; and that Hezekiah by agreement had done him homage, 
and paid him tribute all this time. 



ADDENDA. 555 

The reason why men enter into society, is the preservation of 
their property ; and the end why they choose and authorize a legis- 
lative, is, that there may be laws made, and rules set, as guards 
and fences to the properties of all the members of the society ; to 
limit the power and moderate the dominion of every part and 
member of the society ; for since it can never be supposed to be 
the will of the society that the legislative should have a power to 
destroy that which every one designs to secure by entering into 
society, and for which the people submitted themselves to legis- 
lators of their own making ; whenever the legislators endeavor to 
take away and destroy the property of the people, or to reduce 
them to slavery under arbitary power, they put themselves into a 
state of war with the people, who are thereupon absolved from any 
further obedience, and are left to the common refuge, which God 
hath provided for all men, against force and violence. When- 
soever therefore the legislative shall transgress this fundamental 
rule of society, and either by ambition, fear, folly, or corruption, 
endeavor to grasp themselves, or put into the hands of any other, 
an absolute power over the lives, liberties, and estates of the 
people, by this breach of trust they forfeit the power the people 
had put into their hands for quite contrary ends, and it devolves to 
the people, who have a right to resume their original liberty, and, 
by the establishment of a new legislative (such as they shall think 
fit), provide for their own safety and security, which is the end for 
which they are in society. 

To this perhaps it will be said, that the people being ignorant, 
and always discontented, to lay the foundation of government in 
the unsteady opinion and uncertain humor of the people, is to 
expose it to certain ruin ; and no government will be able long to 
subsist, if the people may set up a new legislative, whenever they 
take offence at the old one. To this I answer, quite the contrary. 
People are not so easily got out of their old forms as some are apt 
to suggest. They are hardly to be prevailed with to amend the 
acknowledged faults in the frame they have been accustomed to. 
And if there be any original defects, or adventitious ones intro- 
duced by time, or corruption ; it is not an easy thing to get them 
changed, even when all the world sees there is an opportunity for 
it. This slowness and aversion in the people to quit their old 



556 ADDENDA. 

constitutions, has in the many revolutions which have been seen in 
this kingdom, in this and former ages, still kept us to, or, after some 
interval of fruitless attempts, still brought us back again to, our old 
legislative of king, lords, and commons ; and whatever provocations 
have made the crown be taken from some of our princes' heads, 
they never carried the people so far as to place it in another line. 

This doctrine of a power in the people of providing for their 
safety anew, by a new legislative, when their legislators have acted 
contrary to their trust, by invading their property, is the best fence 
against rebellion, and the probablest means to hinder it ; for rebel- 
lion being an opposition, not to persons, but authority, which is 
founded only in the constitutions and laws of the government ; 
those, whoever they be, who by force break through, and by 
force justify their violation of them, are truly and properly rebels ; 
for when men, by entering into society and civil government, have 
excluded force, and introduced laws for the preservation of pro- 
perty, peace, and unity amongst themselves; those who set up 
force again in opposition to the laws do rebellare, that is, bring back 
again the state of war, and are properly rebels ; which they who 
are in power (by the pretence they have to authority, the tempta- 
tion of force they have in their hands, and the flattery of those 
about them) being likeliest to do ; the properest way to prevent 
the evil, is to show them the danger and injustice of it, who are 
under the greatest temptation to run into it. 

In both the forementioned cases, when either the legislative is 
changed, or the legislators act contrary to the end for which they were 
constituted, those who are guilty are guilty of rebellion ; for if any 
one by force takes away the established legislative of any society, 
and the laws by them made pursuant to their trust, he thereby 
takes away the umpirage, which every one had consented to, for a 
peaceable decision of all their controversies, and a bar to the state 
of war amongst them. They, who remove, or change the legislative, 
take away this decisive power, which nobody can have but by the 
appointment and consent of the people ; and so destroying the 
authority which the people did, and nobody else can set up, and 
introducing a power which the people hath not authorized, they 
actually introduce a state of war, which is that of force without 
authority ; and thus, by removing the legislative established by the 



ADDENDA. 557 

society (in whose decisions the people acquiesced and united, as to 
that of their own will), they untie the knot, and expose the people 
anew to the state of war. And if those who by force take away the 
legislative, are rebels, the legislators themselves, as has been shoivn, can 
be no less esteemed so ; ichen they, who were set tip for the protection 
and preservation of the people, their liberties and properties, shall by 
force invade and endeavor to take them away ; and so they, putting 
themselves into a state of war with those who made them the pro- 
tectors and guardians of their peace, are properly, and with the 
greatest aggravation, rebellantes, rebels. 

But if they who say, " it lays a foundation for rebellion," mean 
that it may occasion civil wars, or intestine broils, to tell the 
people they are absolved from obedience when illegal attempts are 
made upon their liberties or properties, and may oppose the un- 
lawful violence of those who were their magistrates, when they 
invade their properties contrary to the trust put in them ; and that 
therefore this doctrine is not to be allowed, being so destructive 
to the peace of the world : they may as well say, upon the same 
ground, that honest men may not oppose robbers or pirates, 
because this may occasion disorder or bloodshed. If any mischief 
come in such cases, it is not to be charged upon him who defends 
his own rio-ht, but on him that invades his neighbor's. If the 
innocent honest man must quietly quit all he has, for peace sake, 
to him who will lay violent hands upon it, I desire it may be 
considered, what a kind of peace there will be in the world, which 
consists only in violence and rapine ; and which is to be maintained 
only for the benefit of robbers and oppressors. Who would not 
think it an admirable peace betwixt the mighty and the mean, where 
the lamb without resistance yielded his throat to be torn by the 
imperious wolf ? Polyphemus's den gives us a perfect pattern of 
such a peace, and such a government, wherein Ulysses and his 
companions had nothing to do but quietly to suffer themselves to 
be devoured. And no doubt Ulysses, who was a prudent man, 
preached up passive obedience, and exhorted them to a quiet sub- 
mission, by representing to them of what concernment peace was to 
mankind ; and by showing the inconveniences which might happen, 
if they should offer to resist Polyphemus, who had now the power 
over them. — Locke, vol. v, 414—474, carptim. 



BURKE ON THE AMERICAN WAR. 

EXORDIUM OCCASION OF THE SPEECH — MAGNITUDE OF THE TASK OF RESTORING 

ORDER IN AMERICA BURKE'S PROPOSITION IS " PEACE NOT THROUGH THE 

MEDIUM OF WAR " " IT IS SIMPLY PEACE " WITH THE VIEW OF RESTORING 

CONFIDENCE AND PROCURING RECONCILIATION — THE QUESTIONS AT ISSUE 

OUGHT CONCESSIONS TO BE MADE ? IF SO, WHAT CONCESSIONS ? POSITION OF 

THE WAR PARTY OBJECTIONS ADVANTAGE GAINED BY FORCE TEMPORARY 

AMERICA MUSt BE DESTROYED IN PRESERVING IT TO ENGLAND EXPERIENCE 

AGAINST THE USE OF FORCE — AMERICAN TEMPER AND CHARACTER THE SPIRIT 

OF LIBERTY WORKING OF COLONIAL GOVERNMENT CONDUCT OF THE GOVERN- 
MENT TOWARDS AMERICA — MEANS OF RECONCILIATION THE CAUSES OF DIS- 
CONTENT MUST BE REMOVED IMPOSSIBILITY OF SUBJUGATION INFAMY OF THE 

ATTEMPT UNFITNESS OF ENGLAND FOR THE TASK — THE AMERICAN CHARACTER 

FIXED AND UNALTERABLE — SPIRIT OF THE SOUTHERN COLONIES — SLAVES — PRO- 
POSITION OF CRIMINAL PROSECUTIONS AGAINST REBELS " TOO BIG A THING " 

DEFINITION OF AN EMPIRE — INFERENCE JUDICIAL POSITION OF ENGLAND 

HER CONSEQUENT DUTY OF JUSTICE WHAT HAD BEEN GAINED BY THE MEASURES 

OF THE GOVERNMENT ? WHAT CONCESSIONS OUGHT TO BE MADE — COMPLAINT 

OF THE COLONIES TAXATION WITHOUT REPRESENTATION DUTY OF GOVERN- 
MENT NECESSITY OF A UNITY OF SPIRIT THE COLONIES MUST BE PROTECTED 

BY THE CONSTITUTION EXAMPLE OF SPAIN — PRECEDENT OF IRELAND WALES 

CHESTER DURHAM EXCITEMENTS OF THE AMERICAN MIND TO BE CONSID- 
ERED AND ALLOWED FOR EFFECT OF RECONCILIATION. 

I hope, sir, that notwithstanding the austerity of the chair, your 
good nature will incline you to some degree of indulgence toward 
human frailty. You will not think it unnatural that those who 
have an object depending, which strongly engages their hopes and 
fears, should be somewhat inclined to superstition. As I came into 
the house full of anxiety about the event of my motion, I found, to 
my infinite surprise, that the grand penal bill, by which we had 
passed sentence on the trade and sustenance of America, is to be 
returned to us from the other house. I do confess, I could not 
help looking on this event as a fortunate omen. I look upon it as 



ADDENDA. 559 

a sort of providential favor, by which we are put once more in pos- 
session of our deliberate capacity upon a business so very question- 
able in its nature, so very uncertain in its issue. By the return 
of this bill, which seemed to have taken its flight for ever, we are 
at this very instant nearly as free to choose a plan for our American 
government, as we were on the first day of the session. If, sir, 
we incline to the side of conciliation, we are not at all embarrassed 
(unless we please to make ourselves so) by any incongruous mixture 
of coercion and restraint. We are, therefore, called upon, as it were, 
by a superior warning voice, again to attend to America — to at- 
tend to the whole of it together — and to review the subject with an 
unusual degree of care and calmness. 

To restore order and repose to an empire so great and so dis- 
tracted as ours is, merely, in the attempt, an undertaking that would 
ennoble the flights of the highest genius, and obtain pardon for the 
efforts of the meanest understanding. Struggling a good while 
with these thoughts, by degrees I felt myself more firm. I derived 
at length some confidence from what in other circumstances usually 
produces timidity. I grew less anxious, even from the idea of my 
own insignificance. For, judging of what you are by what you 
ought to be, I persuaded myself that you would not reject a rea- 
sonable proposition, because it had nothing but its reason to recom- 
mend it. Ou the other hand, being totally destitute of all shadow 
of influence, natural or adventitious, I was very sure that if my 
proposition were futile or dangerous, if it were weakly conceived, 
or improperly timed, there was nothing exterior to it of power or 
awe, to dazzle, or delude you. You will see it just as it is ; and you 
will treat it just as it deserves. 

The proposition is peace, not peace through the medium of war ; 
not peace to be hunted through the labyrinth of intricate and end- 
less negotiations; not peace to arise out of universal discord, foment- 
ed upon principle, in all parts of the empire; not peace to depend 
on the judicial determination of perplexing questions, or the pre- 
cise marking of the shadowy boundaries of a complex government. 
It is simply peace, sought in its natural course, and in its ordinary 
haunts. It is peace sought in the spirit of peace ; and laid in 
principles purely pacific. I propose, by removing the ground of 



560 ADDENDA. 

the difference, and by restoring the former unsuspecting confidence of 
the colonies in the mother country, to give permanent satisfaction to 
your people ; and (far from a scheme of ruling by discord) to re- 
concile them to each other in the same act, and by the bond of the 
very same interest, which reconciles them to British government. 

My idea is nothing more. Refined policy ever has been the 
parent of confusion ; and ever will be so as long as the world 
endures. Plain good intention, which is as easily discovered at the 
first view, as fraud is surely detected at the last, is, let me say, of 
no mean force in the government of mankind. Genuine simplicity 
of heart is a healing and cementing principle. My plan, therefore, 
being formed upon the most simple grounds imaginable, may dis- 
appoint some people when they hear it. It has nothing to recom- 
mend it to the pruriency of curious ears. There is nothing at all 
new and captivating in it. 

I mean to give peace. Peace implies reconciliation; and 
where there has been a material dispute, reconciliation does, in a 
manner, always imply concession on the one part or on the other. 
In this state of things I make no difficulty in affirming that the 
proposal ought to originate from us. Great and acknowledged 
force is not impaired, either in effect or in opinion, by an un- 
willingness to exert itself. The superior power may offer peace 
with honor and with safety. Such an offer, from such a power, 
will be attributed to magnanimity. But the concessions of the weak 
are concessions of fear. When such a one is disarmed he is wholly 
at the mercy of his superior ; and he loses forever that time and 
those chances, which, as they happen to all men, are the strength 
and resources of all inferior power. 

The capital leading questions on which you must this day 
decide, are these two : First, whether you ought to concede ; and 
second, what your concession ought to be. On the first of these 
questions we have gained (as I have just taken the liberty of 
observing to you) some ground. But I am sensible that a good deal 
more is still to be done. Indeed, sir, to enable us to determine 
both on the one and the other of these great questions with a firm 
and precise judgment, I think it may be necessary to consider dis- 
tinctly the true nature and the peculiar circumstances of the object 



ADDENDA. 561 

which we have before us. Because after all our struggle, whether 
we will or not, we must govern America, according to that nature, 
and to those circumstances ; and not according to our own imagina- 
tions ; not according to abstract ideas of right ; but by no means 
according to mere general theories of government, the resort to 
which appears to me, in our present situation, no better than arrant 
trifling. 

America, gentlemen say, is a noble object. It is an object 
well worth fighting for. Certainly it is, if fighting a people be the 
best way of gaining them. Gentlemen in this respect will be led 
to their choice of means by their complexions and their habits. 
Those who understand the military art, will of course have some 
predilection for it. Those who wield the thunder of the state, may 
have more confidence in the efficacy of arms. But I confess, 
possibly for want of this knowledge, my opinion is much more in 
favor of prudent management, than of force ; considering force not 
as odious, but as a feeble instrument, for preserving a people so 
numerous, so active, so growing, so spirited as this, in a profitable 
and subordinate connection with us. 

First, sir, permit me to observe that the use of force alone is but 
temporary. It may subdue for a moment ; but it does not remove 
the necessity of subduing again : and a nation is not governed 
which is perpetually to be conquered. 

My next objection is uncertainty. Terror is not always the 
effect of force ; and an armament is not a victory. If you do 
not succeed, you are without resource ; for, couciliation failing, 
force remains ; but force failing, no hope of reconciliation is left. 
Power and authority are sometimes bought by kindness ; but they 
can never be begged as alms, by an impoverished and defeated 
violence. 

A further objection to force is, that you impair the object by 
your very endeavors to preserve it. The thing you fought for is 
not the thing which you recover ; but depreciated, sunk, wasted, 
and consumed in the contest. Nothing less will content me than 
whole America. I do not choose to consume its strength along 
with our own ; because in all parts it is the British strength that 
I consume. I do not choose to be caught by a foreign enemy at 
24* 



562 ADDENDA. 

the end of this exhausting conflict ; and still less in the midst of 
it. I may escape ; but I can make no insurance against such an 
event. Let me add that I do not choose wholly to break the 
American spirit, because it is the spirit that has made the country. 

Lastly, we have no sort of experience in favor of force as an 
instrument in the rule of our colonies. Their growth and their 
utility has been owing to methods altogether different. Our ancient 
indulgence has been said to be pursued to a fault. It may be so. 
But we know, if feeling is evidence, that our fault was more 
tolerable than our attempt to mend it ; and our sin far more salu- 
tary than our penitence. 

These, sir, are my reasons for not entertaining that high opinion 
of untried force, by which many gentlemen, for whose sentiments 
in other particulars I have great respect, seem to be greatly capti- 
vated. But there is still behind a third consideration concerning 
this object, which serves to determine my opinion on the sort of 
policy which ought to be pursued in the management of America, 
even more than its population and its commerce. I mean its temper 
and character. 

In this character of the Americans, a love of freedom is the 
predominating feature which marks and distinguishes the whole : 
and as an ardent is always a jealous affection, your colonies become 
suspicious, restive, and untractable, whenever they see the least 
attempt to wrest from them by force, or shuffle from them by 
chicane, what they think the only advantage worth living for. 
This fierce spirit of liberty is stronger in the English colonies 
probably than in any other people of the earth ; and this from a 
great variety of powerful causes ; which, to understand the true 
temper of their minds, and the direction which this spirit takes, it 
will not be amiss to lay open somewhat more largely. . . . 

I do not mean to commend either the spirit in this excess, or 
the moral causes which produce it. Perhaps a more smooth and 
accommodating spirit of freedom in them would be more acceptable 
to us. Perhaps ideas of liberty might be desired, more reconcilable 
with an arbitrary and boundless authority. Perhaps we might 
wish the colonists to be persuaded that their liberty is more secure, 
when held in trust for them by us (as their guardians during a 



ADDENDA. 563 

perpetual minority), than with any part of it in their own hands. 
But the question is not whether the spirit deserves praise or blame ; 
what, in the name of God shall we do with it ? You have before 
you the object ; such as it is, with all its glories, with all its im- 
perfections on its head. You see the magnitude ; the importance ; 
the temper ; the habits ; the disorders. By all these considerations 
we are strongly urged to determine something concerning it. We 
are called upon to fix some rule and line for our future conduct, 
which may give a little stability to our politics, and prevent 
the return of such unhappy deliberations as the present. Every 
such return will bring the matter before us in a still more untract- 
able form. For what astonishing and incredible things have we 
not seen already ? What monsters have not been generated from 
this unnatural contention ? Whilst every principle of authority 
and resistance has been pushed, upon both sides, so far as it would 
go. there is nothing so solid and certain, either in reasoning or in 
practice, that has not been shaken. . . . We thought, sir, that 
the utmost which the discontented colonists could do, was to 
disturb authority ; we never dreamt they could of themselves 
supply it ; knowing, in general, what an operose business it is 
to establish a government absolutely new. . . . Some provinces 
have tried their experiment as we have tried ours ; and theirs has 
succeeded. They have formed a government sufficient for its pur- 
poses, without the bustle of a revolution. Evident necessity and 
tacit consent have done the business in an instant. So well they 
have done it that Lord Dunmore (the account is among the frag- 
ments on your table) tells you that the new institution is infinitely 
better obeyed than the ancient government ever was in its fortunate 
periods. Obedience is what makes government, and not the names 
by which it is called; not the name of governor as formerly, or 
committee as at present. 

Pursuing the same plan of punishing by the denial of the exer- 
cise of government to still greater lengths, we wholly abrogated 
the ancient government of Massachusetts. We were confident that 
the first feeling if not the very prospect of anarchy, would in- 
stantly enforce a complete submission. The experiment was tried. 
A new, strange, unexpected face of things appeared. Anarchy is 



564 ADDENDA. 

found tolerable. A vast province has now subsisted, and subsisted 
in a considerable degree of health and vigor, for near a twelve- 
month, without governor, without public council, without judges, 
without executive magistrates. How long it will continue in this 
state, or what may arise out of this unheard of situation, how can 
the wisest of us conjecture ? Our late experience has taught us 
that many of those fundamental principles, formerly believed in- 
fallible, are either not of the importance they were imagined to be ; 
or that we have not at all adverted to some other far more impor- 
tant, and far more powerful principles, which entirely overrule 
those we had considered as omnipotent. I am much against any 
further experiments, which tend to put to the proof any more of 
these allowed opinions, which contribute so much to the public 
tranquillity. In effect, we suffer as much at home, by this loosen- 
ing of all ties, and this concussion of all established opinions, as we 
do abroad. For in order to prove that the Americans have no 
right to their liberties, we are every day endeavoring to subvert the 
maxims which preserve the whole spirit of our own. To prove 
that the Americans ought not to be free, we are obliged to depre- 
ciate the value of freedom itself; and we never seem to gain a 
paltry advantage over them in debate, without attacking some of 
those principles, or deriding some of those feelings, for which our 
ancestors have shed their blood. 

But, sir, in wishing to put an end to pernicious experiments, I 
do not mean to preclude the fullest inquiry. Far from it. Far 
from deciding on a sudden or partial view, I would patiently go 
round and round the subject, and survey it minutely in every pos- 
sible aspect. Sir, if I were capable of engaging you to equal at- 
tention, I would state, that as far as I am capable of discerning, 
there are but three ways of proceeding relative to this stubborn 
spirit, which prevails in your colonies and disturbs your govern- 
ment. These are — To change that spirit, as inconvenient, by re- 
moving the causes. To prosecute it as criminal. Or, to comply 
with it as necessary. I would not be guilty of an imperfect enu- 
meration; I can think of but these three. Another has indeed 
been started, that of giving up the colonies ; but it met so slight a 



ADDENDA. 565 

reception, that I do not think myself obliged to dwell a great while 
upon it. 

The first of these plans, to change the spirit as inconvenient, 
by removing the causes, I think is the most like a systematic pro- 
ceeding. It is radical in its principles ; but it is attended with great 
difficulties, some of them little short, as I conceive, of impossi- 
bilities. 

You cannot station garrisons in every part of these deserts. If 
you drive the people from one place, they will carry on their an- 
nual tillage, and remove with their flocks and herds to another. 
Many of the people in the back settlements are already little at- 
tached to particular situations. Already they have topped the 
Apalachian mountains. From thence they behold before them an 
immense plain, one vast, rich, level meadow; a square of five hun- 
dred miles. Over this they would wander, without a possibility of 
restraint ; they would change their manners with the habits of 
their life ; would soon forget a government by which they were 
disowned ; would become hordes of English Tartars ; and pouring 
down upon your unfortified frontiers a fierce and irresistible cav- 
alry, become masters of your governors, and your councillors, your 
collectors and comptrollers, and of all the slaves that adhered to 
them. 

To impoverish the colonies in general, and in particular to ar- 
rest the noble course of their marine enterprises, would be a more 
easy task, I freely confess it. "We have shown a disposition to a 
system of this kind ; a disposition even to continue the restraint 
after the offence ; looking on ourselves as rivals to our colonies, and 
persuaded that of course we must gain all that they shall lose. 
Much mischief we may certainly do. The power inadequate to 
all other things is often more than sufficient for this. I do not look 
on the direct and immediate power of the colonies to resist our 
violence, as very formidable. In this, however, I may be mista- 
ken. But when I consider that we have colonies for no other pur- 
pose but to be serviceable to us, it seems to my poor understand- 
ing a little preposterous to make them unserviceable in order to 
keep them obedient. It is, in truth, nothing more than the old and, 
as I thought, exploded problem of tyranny, which proposes to beg- 



566 ADDENDA. 

gar its subjects into submission. But remember, when you have 
completed your system of impoverishment, that nature still pro- 
ceeds in her ordinary course ; that discontent will increase with 
misery ; and that there are critical moments in the fortunes of all 
states, when they who are too weak to contribute to your prosper- 
ity may be strong enough to complete your ruin. Spoliatis arma 
supersunt. 

The temper and character which prevail in our colonies are, I 
am afraid, unalterable by any human art. We cannot, I fear, fal- 
sify the pedigree of this fierce people, and persuade them that 
they are not sprung from a nation in whose veins the blood of 
freedom circulates. The language in which they would hear you 
tell them this tale would detect the imposition; your speech would 
betray you. An Englishman is the unfittest person on earth to 
argue another Englishman into slavery. 

I think it is nearly as little in our power to change their re- 
publican religion as their free descent ; or to substitute the Roman 
Catholic as a penalty, or the Church of England as an improve- 
ment. The mode of inquisition and dragooning is going out of 
fashion in the Old World ; and I should not confide much to their 
efficacy in the New. The education of the Americans is also on 
the same unalterable bottom with their religion. You cannot per- 
suade them to burn their books of curious science, to banish their 
lawyers from the courts of law, or to quench the lights of their 
assemblies by refusing to choose those persons who are best read 
in their privileges. It would be no less impracticable to think of 
wholly annihilating the popular assemblies in which these lawyers 
sit. The army by which we must govern in their place would be 
far more chargeable to us ; not quite so effectual, and perhaps in 
the end full as difficult to be kept in obedience. 

With regard to the high aristocratic spirit of Virginia and the 
Southern colonies, it has been proposed, I know, to reduce it by 
declaring a general enfranchisement of their slaves. This project 
has had its advocates and panegyrists ; yet I never could argue 
myself into any opinion of it. Slaves are often much attached to 
their masters. A general wild offer of liberty would not always 
be accepted. History furnishes few instances of it. It is some- 



ADDENDA. 567 

times as hard to persuade slaves to be free as it is to compel free- 
men to be slaves ; and in this auspicious scheme we should have 
both these pleasing tasks on our hands at once. But when we talk 
of enfranchisement, do we not perceive that the American master 
may enfranchise too, and arm servile hands in defence of freedom ? 
A measure to which other people have had recourse more than 
once, and not without success, in a desperate situation of their 
affairs. 

Slaves as these unfortunate black people are, and dull as all 
men are from slavery, must they not a little suspect the offer of 
freedom from that very nation which has sold them to their pres- 
ent masters ? 

If then, sir, it seems almost desperate to think of any altera- 
tive course, for changing the moral causes (and not quite easy to 
remove the natural) which produce prejudices irreconcilable to the 
late exercise of our authority; but that the spirit infallibly will 
continue, and continuing will produce such effects as now embarrass 
us ; the second mode under consideration is, to prosecute that spirit 
in its overt acts, as criminal. 

At this proposition I must pause a moment. The thing seems 
a great deal too big for my ideas of jurisprudence. It should seem 
to my way of conceiving such matters, that there is a very wide 
difference in reason and policy, between the mode of proceeding on 
the irregular conduct of scattered individuals, or even of bands of 
men. who disturb order within the state, and the civil dissensions 
which may, from time to time, on great questions, agitate the sev- 
eral communities which compose a great empire. It looks to me to 
be narrow and pedantic to apply the ordinary ideas of criminal 
justice to this great public contest. I do not know the method of 
drawing up an indictment against a whole people. I cannot insult 
and ridicule the feelings of millions of my fellow creatures, as Sir 
Edward Coke insulted one excellent individual (Sir Walter Ra- 
leigh) at the bar. I am not ripe to pass seutence on the gravest 
public bodies, intrusted with magistracies of great authority and 
dignity, and charged with the safety of their fellow citizens, upon 
the same title that I am. I really think, that for wise men this is 



568 ADDENDA. 

not judicious; for sober men, not decent; for minds tinctured with 
humanity, not mild and merciful. 

Perhaps, sir, I am mistaken in my idea of an empire, as dis- 
tinguished from a single state or kingdom. But my idea of it is 
this : that an empire is the aggregate of many states, under one 
common head, whether this head be a monarch or a presiding 
republic. It does, in such constitutions, frequently happen (and 
nothing but the dismal, cold, dead uniformity of servitude can pre- 
vent its happening) that the subordinate parts have many local 
privileges and immunities. Between these privileges and the su- 
preme common authority the line may be extremely nice. Of 
course disputes, often, too, very bitter disputes, and much ill blood, 
will arise. But though every privilege is an exemption (in the 
case) from the ordinary exercise of the supreme authority, it is no 
denial of it. The claim of a privilege seems rather ex vi termini, to 
imply a superior power. For to talk of the privileges of a state or 
of a person, who has no superior, is hardly any better than speak- 
ing nonsense. Now, in such unfortunate quarrels, among the com- 
ponent parts of a great political union of communities, I can scarcely 
conceive anything more completely imprudent, than for the head of 
the empire to insist, that, if any privilege is pleaded against his 
will, or his acts, that his whole authority is denied ; instantly to 
proclaim rebellion, to beat to arms, and to put the offending prov" 
inces under the ban. Will not this, sir, very soon teach the prov- 
inces to make no distinctions on their part ? Will it not teach 
them that the government, against which a claim of liberty is tan- 
tamount to high treason, is a government to which submission is 
equivalent to slavery ? It may not be always convenient to impress 
independent communities with such an idea. 

We are, indeed, in all disputes with the colonies, by the neces- 
sity of things, the judge. It is true, sir. But I confess that the 
character of judge in my own cause, is a thing that frightens me. 
Instead of filling me with pride, I am exceedingly humbled at it. 
I cannot proceed with a stern, assured, judicial confidence, until I 
find myself in something more like a judicial character. I must 
have these hesitations as long as I am compelled to recollect, that, 
in my little reading upon such contests as these, the sense of man- 



ADDENDA. 569 

kind has, at least, as often decided against the superior as the sub- 
ordinate power. Sir, let me add, too, that the opinion of my having 
some abstract right in my favor would not put me much at my ease 
in passing sentence; unless I could be sure that there were no 
rights which, in their exercise under certain circumstances, were 
not the most odious of all wrongs, and the most vexatious of all 
injustice. Sir, these considerations have great weight with me, 
when I find things so circumstanced, that I see the same party, at 
once a civil litigant against me in point of right, and a culprit be- 
fore me; while I sit as criminal judge, on acts of his, whose moral 
quality is to be decided upon the merits of that very litigation. 
Men are every now and then put, by the complexity of human af- 
fairs, into strange situations; but justice is the same, let the judge 
be in what situation he will. 

There is, sir, also a circumstance which convinces me, that this 
mode of criminal proceeding is not (at least in the present stage of 
our contest) altogether expedient ; which is nothing less than the 
conduct of those very persons who have seemed to adopt that mode, 
by lately declaring a rebellion in Massachusetts Bay, as they had 
formerly addressed to have traitors brought hither under an act of 
Henry the Eighth, for trial. For, though rebellion is declared, it is 
not proceeded against as such ; nor have any steps been taken 
towards the apprehension and conviction of any individual offender, 
either on our late or our former address ; but modes of public co- 
ercion have been adopted, and such as have much more resemblance 
to a sort of qualified hostility towards an independent power than 
the punishment of rebellious subjects. All this seems rather incon- 
sistent ; but it shows how difficult it is to apply these juridical 
ideas to our present case. 

In this situation let us seriously and coolly ponder. What is it 
we have got by all our menaces, which have been many and fero- 
cious ? What advantage have we derived from the penal laws we 
have passed, and which, for the time, have been severe and numer- 
ous? What advances have we made towards our object, by the 
sending of a force, which, by land and sea, is of no contemptible 
strength ? Has the disorder abated ? Nothing less. When I see 
things in this situation, after such confident hopes, bold promises, 



5 TO ADDENDA. 

and active exertions, I cannot, for my life, avoid a suspicion, that 
the plan itself is not correctly right. 

If, then, the removal of the causes of this American liberty he, 
for the greater part, or rather entirely, impracticable ; if the ideas 
of criminal process be inapplicable, or if applicable, are in the 
highest degree inexpedient, what way yet remains ? No way is 
open, but the third and last — to comply with the American spirit 
as necessary ; or, if you please, to submit to it as a necessary evil. 

If we adopt this mode, if we mean to conciliate and concede, 
let us see of what nature the concession ought to be ; to ascertain 
the nature of our concession, we must look at their complaint. The 
colonies complain that they have not the characteristic mark and 
seal of British freedom. They complain that they are taxed in a 
Parliament in which they are not represented. If you mean to 
satisfy them all, you must satisfy them in regard to this complaint. 
If you mean to please any people, you must give them the boon 
which they ask; not what you may think better for them, but of a 
kind totally different. Such an act may be a wise regulation, but it 
is no concession ; whereas our present theme is the mode of giving 
satisfaction. 

The question with me is, not whether you have a right to render 
your people miserable ; but whether it is not your interest to make 
them happy. It is not, what a lawyer tells me, I may do; but 
what humanity, reason, and justice, tell me I ought to do. Is a 
politic act the worse for being a generous one ? Is no concession 
proper but that which is made from your want of right to keep what 
you grant ? Or does it lessen the grace or dignity of relaxing in 
the exercise of an odious claim, because you have your evidence 
room full of titles, and your magazines stuffed with arms to enforce 
them ? What signify all those titles, and all those arms ? Of 
what avail are they, when the reason of the thing tells me that the 
assertion of my title is the loss of my suit ; and that I could do 
nothing but wound myself by the use of my own weapons ? 

Such is steadfastly my opinion of the absolute necessity of keep- 
ing up the concord of this empire by a unity of spirit, though by a 
diversity of operations, that if I were sure the colonists had, at their 
leaving this country, sealed a regular compact of servitude ; that 



ADDENDA. 571 

they had solemnly abjured all the rights of citizens ; that they had 
made a vow to renounce all ideas of liberty for them and their 
posterity, to all generations, yet I should hold myself obliged to 
conform to the temper I found universally prevalent in my own 
day, and to govern two millions of men, impatient of servitude, on 
the principles of freedom. I am not determining a point of law ; 
I am restoring tranquillity ; and the general character and situation 
of a people must determine what sort of government is fitted for 
them. That point nothing else can or ought to determine. 

My idea, therefore, without considering whether we yield as 
matter of right, or grant as matter of favor, is, to admit the people 
of our colonies into an interest in the constitution ; and by recording that 
admission in the journals of Parliament, to give them as strong 
an assurance as the nature of the thing will admit, that we mean 
forever to adhere to that solemn declaration of systematic indul- 
gence. 

In forming a plan for this purpose, I endeavored to put myself 
in that frame of mind, which was the most natural, and the most 
reasonable; and which was certainly the most probable means of 
securing me from all error. I set out with a perfect distrust of my 
own abilities ; a total renunciation of every speculation of my own ; 
and with a profound reverence for the wisdom of our ancestors, who 
have left us the inheritance of so happy a constitution, and so 
flourishing an empire, and what is a thousand times more valuable, 
the treasury of the maxims and principles which formed the one, and 
obtained the other. 

During the reigns of the kings of Spain of the Austrian family, 
whenever they were at a loss in the Spanish councils, it was com- 
mon for their statesmen to say, that they ought to consult the genius 
of Philip the Second. The genius of Philip the Second might 
mislead them, and the issue of their affairs showed that they had 
not chosen the most perfect standard. But sir, I am sure that I 
shall not be misled, when, in a case of constitutional difficulty, I 
consult the genius of the English Constitution. Consulting at that 
oracle (it was with all due humility and piety) I found four capital 
examples in a similar case before me : those of Ireland, Wales, 
Chester, and Durham. 



572 ADDENDA. 

Ireland, before the English conquest, though never governed 
by a despotic power, had no parliament. How far the English 
Parliament itself was at that time modelled according to the present 
form, is disputed among antiquarians. But we have all the reason 
in the world to be assured, that a form of parliament, such as Eng- 
land then enjoyed, she instantly communicated to Ireland ; and we 
are equally sure that almost every successive improvement in con- 
stitutional liberty, as fast as it was made here, was transmitted 
thither. The feudal baronage and the feudal knighthood, the roots 
of our primitive constitution, were equally transplanted into that 
soil; and grew and nourished there. Magna Charta, if it did not 
give us originally the House of Commons, gave us at least a House 
of Commons of weight and consequence. But your ancestors did 
not churlishly sit down alone at the feet of Magna Charta. Ireland 
was made immediately a partaker. This benefit of English laws 
and liberties, I confess, was not extended to all Ireland. Mark the 
consequence. English authority and English liberty had exactly 
the same boundaries. Your standard could never be advanced an 
inch before your privileges. Sir John Davis shows beyond a doubt, 
that the refusal of a general communication of these rights, was the 
true cause why Ireland was five hundred years in subduing ; and 
after the vain projects of a military government attempted in the 
reign of Queen Elizabeth, it was soon discovered that nothing could 
make that country English, in civility and allegiance, but your laws 
and your forms of legislature. It was not English arms, but the 
English Constitution, that conquered Ireland. From that time, 
Ireland has ever had a general parliament, as she had before, a par- 
tial parliament. You changed the people, you altered the reli- 
gion ; but you never touched the form of the vital substance of free 
government in that kingdom. You deposed kings, you restored 
them ; you altered the succession to theirs, as well as to your own 
crown ; but you never altered their constitution ; the principle of 
which was respected by usurpation ; restored with the restoration 
of monarchy, and established, I trust, forever by the glorious Kevo- 
lution. This has made Ireland the great and flourishing kingdom 
that it is ; and from a disgrace and a burden, intolerable to this 



ADDENDA. 573 

nation ; has rendered her a principal part of our strength and orna- 
ment. 

My next example is "Wales. This country was said to be re- 
duced by Henry the Third. It was said more truly to be so by 
Edward the First. But though then conquered, it was not looked 
upon as any part of the realm of England. Its old constitution, 
whatever that might have been, was destroyed, and no good one 
was substituted in its place. The care of that tract was put into 
the hands of lord marchers — a form of government of a very sin- 
gular kind ; a strange, heterogeneons monster, something between 
hostility and government ; perhaps it has a sort of resemblance, 
according to the modes of those times, to that of commander-in- 
chief, at present, to whom all civil power is granted as secondary 
The manners of the Welsh nation followed the genius of the govern- 
ment ; the people were ferocious, restive, savage, and uncultivated ; 
sometimes composed ; never pacified. Wales within itself, was in 
perpetual disorder ; and it kept the frontier of England in perpetual 
alarm. Benefits from it to the state, there were none. Wales was 
only known to England by incursion and invasion. 

Sir, during that state of things, Parliament was not idle. They 
attempted to subdue the fierce spirit of the Welsh by all sorts of 
rigorous laws. They prohibited by statute the sending all sorts 
of arms into Wales, as you prohibit by proclamation (with some- 
thing more of doubt on the legality) the sending arms to America. 
They disarmed the Welsh by statute, as you attempted (but with 
still more question on the legality) to disarm New England by an 
instruction. They made an act to drag offenders from Wales into 
England for trial, as you have done (but with more hardships) with 
regard to America. By another act, where one of the parties was 
an Englishman, they ordained that his trial should be always by 
English. They made acts to restrain trade, as you do ; and they pre- 
vented the Welsh from the use of fairs and markets, as you do the 
Americans from fisheries and foreign ports. In short, when the 
statute book was not quite so much swelled as it is now, you find 
no less than fifteen acts of penal regulation on the subject of 
Wales. 

Here we rub our hands — a fine body of precedents for the au- 



574 ADDENDA. 

thority of Parliament and the use of it ! — I admit it fully ; 
and pray add likewise to these precedents, that all the while Wales 
rid this kingdom like an incubus ; that it was an unprofitable and 
oppressive burden ; and that an Englishman in that country could 
not go six yards from the high road without being murdered. 

The march of the human mind is slow. Sir, it was not until 
after two hundred years discovered, that by an eternal law, Pro- 
vidence had decreed vexation to violence, and poverty to rapine. 
Your ancestors did however at length open their eyes to the ill 
husbandry of injustice. They found that the tyranny of a free 
people, could of all tyrannies the least be endured ; and that laws 
made against a whole nation were not the most effectual methods 
for securing its obedience. Accordingly, in the 27th year of Henry 
VIIL, the course was entirely altered. With a preamble stating 
the entire and perfect rights of the crown of England, it gave to 
the Welsh all the rights and privileges of English subjects. A 
political order was established ; the military power gave way to the 
civil ; the marches were turned into counties. But that a nation 
should have a right to English liberties, and yet no share at all in 
the fundamental security of these liberties, the grant of their own 
property, seemed a thing so incongruous, that eight years after, that 
is, in the thirty-fifth of that reign, a complete and not ill-propor- 
tioned representation by counties and boroughs was bestowed upon 
Wales, by act of Parliament. From that moment, as by a charm, 
the tumults subsided ; obedience was restored ; peace, order, and 
civilization followed in the train of liberty. When the day star of 
the English Constitution had arisen in their hearts, all was harmony 
within and without. 

Simul alba nautis, 
Stella refulsit ; 

Defluit saxis agitatus humor ; 

Concidunt venti, fugiuntque nubes, 

Et minax (quod sic voluere) ponto 
Unda recumbit. 

The very same year the county palatine of Chester received 
the same relief from its oppressions, and the same remedy to its 
disorder. Before this time Chester was little less distempered than 



ADDENDA. 575 

"Wales. The inhabitants, without rights themselves, were the fittest 
to destroy the rights of others; and from thence Richard II. drew 
the standing army of archers with which for a time he oppressed 
England. 

Here is my third example. It was attended with the success 
of the two former. Chester, civilized as well as Wales, has demon- 
strated that freedom and not servitude is the cure of anarchy ; as 
religion and not atheism, is the true remedy for superstition. 

I do not know that the colonies have, in any general way, or in 
any cool hour, gone much beyond the demand of immunity in rela- 
tion to taxes. It is not fair to judge of the temper or dispositions 
of any man, or any set of men, when they are composed and at 
rest, from their conduct, or their expressions, in a state of disturb- 
ance and irritation. It is, besides, a very great mistake to imagine 
that mankind follow up practically any speculative principle, either 
of government or of freedom, as far as it will go in argument and 
logical illation. We Englishmen stop very short of the principles 
upon which we support any given part of our constitution ; or even 
the whole of it together. I could easily, if I had not altogether 
tired you, give you very striking and convincing instances of it. 
This is nothing but what is natural and proper. All government, 
indeed every human benefit and enjoyment, every virtue, and every 
prudent act, is founded on compromise and barter. We balance 
inconveniences ; we give and take ; we remit some rights that we 
may enjoy others; and we choose rather to be happy citizens than 
subtle disputants. As we must give away some natural liberty, to 
enjoy civil advantages ; so we must sacrifice some civil liberties, for 
the advantages to be derived from the communion and fellowship 
of a great empire. But in all fair dealings, the thing bought must 
bear some proportion to the purchase paid. None will barter away 
the immediate jewel of his soul. Though a great house is apt to 
make slaves haughty, yet it is purchasing a part of the artificial 
importance of a great empire too dear, to pay for it all essential 
rights, and all the intrinsic dignity of human nature. None of us 
who would not risk his life, rather than fall under a government 
purely arbitrary. But, although there are some amongst us who 
think our constitution wants many improvements to make it a 



IjT 



576 ADDENDA. 



complete system of liberty, perhaps none who are of that opinion 
would think it right to aim at such improvement, by disturbing his 
country, and risking everything that is dear to him. In every 
arduous enterprise, we consider what we are to lose, as well as what 
we are to gain ; and the more and better stake of liberty every 
people possess, the less they will hazard in a vain attempt to make 
it more. These are the cords of man. Man acts from adequate 
motives relative to his interest, and not on metaphysical specula- 
tions. Aristotle, the great master of reasoning, cautions us, and 
with great weight and propriety, against this species of delusive 
geometrical accuracy in moral arguments, as the most fallacious of 
all sophistry. 

The Americans will have no interest contrary to the grandeur 
and glory of England, when they are not oppressed by the weight 
of it ; and they will rather be inclined to respect the acts of a 
superintending legislature, when they see them the acts of that 
power, which is itself the security, not the rival of their secondary 
importance. In this assurance my mind most perfectly acquiesces ; 
and I confess I feel not the least alarm from the discontents which 
are to arise from putting people at their ease ; nor do I apprehend 
the destruction of this empire, from giving, by an act of free grace 
and indulgence, to two millions of my fellow citizens, some share of 
those rights upon which I have always been taught to value 
myself. 



